Tag Archives: then versus now

Do I have a right to be here?

Every human being has an inalienable right to migrate across their planet without restriction or fear.1It is impossible to place a restriction upon this right that is not animated by racism and classism.2 An immigration law is an act of violence that enforces and reinforces the idea that it is morally acceptable to hate3 someone because of where they were born. There is no migrant crisis – there is a migration-restriction crisis. These are the presumptions I begin with and proceed from.

In 1896, my great grandmother, Nicolina “Nellie” Falvo, boarded the S.S. Algeria in Naples, Italy for the United States.4 She arrived in New York City on August 15, 1896 as a 15-year old domestic servant.5 It was easy for Great grandma Nellie to enter the United States because the law was different then, and with some racist exceptions,6 many people were permitted to cross the border and settle indefinitely without a visa or papers of any kind.7

Open Borders: The Case editorial note: Check out Vipul Naik’s posts Ellis Island and keyhole solutions and How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

The law is different today. Today, my great grandmother would be barred by law from entering New York City and from remaining here indefinitely, with very few exceptions. Instead of standing in line at Ellis Island, she would be received by armed police, prison and forced relocation back to Italy. If great grandma Nellie tried to cross the border today, the law would measure her against an impossibly elaborate list of arbitrary factors to judge her deserving or not deserving of entering and remaining in the U.S. What makes these factors arbitrary is not their complexity or rationale, but their lack of equity. Equity is a wonderful legal concept – more than equality, it means fairness, or more precisely it presumes that all human beings are equal before the law, and that therefore they should be treated fairly as to one another. Black’s law dictionary defines equity this way: “Fairness; impartiality; evenhanded dealing . . . The body of principles constituting what is fair and right; natural law .”8

Immigration restrictions under U.S. law are not equitable because they do not first presume that all human beings are equal. Instead, all immigration restrictions are built upon the foundational idea that non-citizens may be treated differently than citizens only because they are not citizens. This difference and this difference alone justifies their mistreatment, and this is what I mean when I described immigration laws as inequitable or arbitrary – they are morally arbitrary.Immigration laws are fundamentally unfair in their application to human beings and this becomes clearer when we imagine how a rule made for non-citizens might look if it were applied to citizens. Take, for example, the immigration law that says someone may be denied legal permanent residency if that person is designated “a public charge,” that is, using certain forms of welfare for which they were nonetheless financially eligible.9 What about all of the citizens who are “public charges” – the poor, the disabled, the elderly, the Wall Street bankers10 – why not deport them? As author and open borders advocate Teresa Hayter notes:

“. . . in general people over the age of 70 receive more from public expenditure than they contribute to it, an argument corresponding to the one on immigration would have to be that such persons are undesirable and should be expelled from the country. Doubtless the same would apply to the unemployed, the severely handicapped, perhaps to religious people and artists. . .”11

The only reason this Jonathan Swift-like argument is not rejected, Hayter points out, is that it concerns non-citizens. Thus “to take this argument seriously is to contribute to the dehumanization of the migrant.”12 I agree with Hayter that to take immigration laws seriously is to accept that non-citizens are less human than citizens – a fundamentally inequitable idea.

Which brings me back to great grandma Nellie and the point of this article. If Nellie could come here without legal restriction, then it seems only fair that others coming in the same manner today should be afforded the same unencumbered access to enter and remain.If persons in Nellie’s position today are not given the same leave she was, how then can I, a beneficiary of the leave granted Nellie, equitably claim more of right than they to stay and remain and live and seek work here? Why do I deserve to stay and remain at all, and why don’t others? As Hayter has said of immigration controls, they give a state “the right to choose between the deserving and the undeserving.”13 Many factors are often called upon in U.S. immigration law and policy to justify whether someone like Nellie or I “deserves” to be here, some of the more common ones include; birth in the U.S; time in the U.S.; having family in the U.S.; and the fact that someone will face specific kinds of danger if they leave the U.S. I consider these justifications below, and reflect on why they are morally arbitrary and unfair, and question if and why I deserve to be here.

What you will not find below are arguments against immigration controls that are rooted in economics, utilitarianism, or negative policy outcomes.14 Instead I question whether immigration restrictions on their face can be called fair by any person who assumes all human being are equal.15 As author and professor of history Aviva Chomsky has observed about the very idea that it is ok to restrict the immigration of people for some of the below reasons, “with a bit of critical distance, the notion appears more and more absurd.”16

I. Do I deserve to live here because I was born here?

Nellie was not born in the U.S., and would that she had tried to enter today, she would have been punished for that fact. Under current law persons born inside U.S. territory are U.S. citizens at birth, pursuant to the clause of the Fourteenth Amendment of the federal U.S. constitution, which says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Such people are welcomed by the law with open arms, completely and unconditionally. By contrast persons born outside U.S. territory(with the exception of some persons who have U.S. citizen parents17) incur the law’s disdain and suspicion as “aliens.”

Open Borders: The Case editorial note: Check out Joel Newman’s post Open Borders Allow People, Not Their Place of Birth, To Control Their Lives

That an immutable characteristic like place of birth should justify discrimination contravenes the idea of equality. Professor of immigration law Hiroshi Motomora, understating what should be more obvious than it is, has pointed out the “inherent tension in immigration law- between the basic idea of national borders, which inherently discriminate between insiders and outsiders – with a sense of justice that embraces a commitment to equality.”18 Political scientist Jacqueline Stephens, putting a finer point on it, says the idea of birthright citizenship is as incompatible with a liberal, egalitarian society as discrimination based on race or religion because it is “the epitome of discrimination based on ancestry” and thus constitutes “global apartheid.”19 And she’s right: I did not earn my birth here; I did not chose my ancestry or pick my passport, any more than I decided my skin color or worked toward my sex at birth. How then, could I have possibly earned access to a life and a job here more than anyone else who has earned and chosen as much as I have, but been born elsewhere? Can I claim anything other than the most naked luck and arbitrary participation in the lottery we call “nationality?” I am not a person who immigrated to the U.S, who performed, what Teresa Hayter has called “staggering feats of ingenuity, courage and endurance to assert their right to move and to flee,”20 in order to be in the U.S. Instead, I was born with an American spoon in my mouth. If birthright citizen were about anything more meritorious than immutable characteristics, then maybe people like me, who exerted no effort or initiative to be here, should be deported. But of course it seems unfair to deport people who have lived here their whole lives. Yet that is exactly what the rules of deservingness do to noncitizens in identical positions – those brought here as infants, lived here their whole lives and known no other country, but still subject to deportation.21 This is the brutality of birthright citizenship.

Birthright citizenship is about privilege. One effect of privilege – whether it comes from skin color, or genitalia or locos of birth –is that it bestows enormous power but asks nothing in return. It is a free lunch in every sense of the term;a gift sent to the wrong address; an inheritance from a relative you never acknowledged; the beneficiary is a spoiled child that did not chose its family. By what right do the privileged hoard the good graces of the universe? By no right, of course, that is why it is a privilege. The same can be said of the birthright privilege to remain. As Aviva Chomsky notes, “[i]llegality is the flipside of inequality. It serves to preserve the privileged spaces for those deemed citizens and justify their privilege by creating a legal apparatus to sustain it.”22 This is why Joseph Carens hit the nail on the head when he compared birthright citizenship to the system of nobility and peasantry during the European middle ages – where your opportunity in life is dictatedentirely by the family of your birth.23

Some have challenged the birth-right citizenship rule, typically to exclude, not include, and this challenge, by virtue of its effort to disenfranchise some people who were born in the U.S., ironically highlights the arbitrary nature of birthright citizenship itself. The effort to deprive citizens of birthright citizenship has been a pet project of the political right in the United States at least since 1985, when a book24 introduced the idea into the minds of people looking to justify their contempt for immigrants.25 The authors and their proponents have argued, among other things, that “subject to the jurisdiction thereof” does not apply to babies born to persons who are inside U.S. territory against its laws, because they were not “subject” to the legal jurisdiction of the U.S.26 That interpretationof the Fourteenth Amendment has never been accepted by the Supreme Court,27 nonetheless, the implications of that argument against birthright citizenship stagger the mind, since its retroactive implementation would literally disenfranchise a hundred million people28 whose parents, or grandparents, or great grandparents were not U.S. citizens when their children were born in the U.S.29 I could be one of those people, if, say, my grandfather was born when great-grandma Nellie was still a citizen of Italy and not the U.S. (I actually don’t know when she naturalized). After all, if Nellie’s youngest (my grandfather) was not a U.S. citizen when he was born to her, then neither was my father when he was born, and thus neither am I.

If the idea of taking U.S. citizenship from whole families living in the U.S. for three or four generations should seem unfair or inequitable to anyone, then it’s worth asking why. Does it seem unfair because people born here to noncitizen parents are in the same position as peopleborn here to citizens? Why, after all, should one group be treated differently for reasons they can’t possibly control?Yet the same can be said of birthright citizenship as it exists today. Birthright citizenship deprives the unluckily-born outside the U.S. of rights for immutable reasons, ones related to ancestors and parents they had no choice about. Nellie would have no right to enter the U.S. because she was unlucky enough to have had a mother who went into labor outside its borders. Birthright citizenship excludes persons born outside the U.S. just as unfairly as would a rule precluding birthright citizenship altogether –in both scenarios people are denied rights because of immutable characteristics.

Do I deserve to live here because I was born here? Equitably speaking, if I don’t then it’s difficult to say who does, and if I do, then it’s equally hard to say who doesn’t.

II. Do I deserve to live here because I grew up here?

Another justification for identifying those who deserve to be here from those who do not, is by bean-counting the number of years they can claim they’ve lived within the U.S. The theory is that the longer a person lives here, the stronger their claim to continue to live here.30 One relatively rare form of relief from deportation, for example, is called “cancellation of removal,” and it applies the bean-counting logic. Upon a showing of a number of other arbitrary factors,31 cancellation of removal may be available to an undocumented non-citizen whois in the U.S. against its unjust laws for ten years. Another, even rarer form of relief will allow someone to have permeant legal residency if they’ve accomplished the difficult feat of remaining undocumented inside the U.S. continuously since January 1, 1972.32 Length of time in the U.S. has also been identified as a “favorable” factor in any discretionary grant of permission to remain in the U.S.33

First, the argument that a person deserves to live in a place more than other people because they grew up there is itself an argument that is not,in practice, applied as consistently to non-citizens as it is to citizens. For example, east-coaster that I am, I have never set foot in California or Kansas or Alaska, yet the millions of non-citizens who have called these places home for years or decades have less of a right to be there than I do, because they’re paperwork is different? I, who could not tell you which way Sacramento is from Los Angeles, have, in fact, a legally absolute right to travel, live and work in LA, while someone with different paperwork who has lived in LA enough years to memorize every interstate number may have no such right.

Open Borders: The Case editorial note: Check out The Difference Between an Illegal Immigrant and Me: A Little Memoir and Some Questions It Raises by Robert Higgs

More to the point though, why should my three-plus decades in the U.S. and, say, my two years living in New York City, make me more deserving to live here than someone with fewer years? Why should the accumulation of time in any one location (unearned time vis-a-vis accidental birth, at that) by bootstrapping, create an exclusive right to accumulate more time in that same location? I am here, therefore I should be?

Even assuming time plus geography equals superiority of right to reside, the equitably arbitrary nature of that rule is exposed when one attempts to apply it: Recall that ten years of residence is what an undocumented person34 would need to get “cancellation of removal.” The law says ten, and it means ten.35 So, ten years is enough to deserve to stay here but not nine, never nine – nine would be a ridiculous assertion, as would nine and a half, or nine and three quarters.36 Five years or eight years could never do it, for some just-because reason. And what of the twelve year old child who has lived here for nine years, three quarters of her life? Shouldn’t she have more of a right than a fifty year old who’s lived here for ten years, only one fifth of their life? Ten, in this case, is a number based on little more, it seems, than the vague emotional sense that a decade is a pretty long time, and if deservingness is to sprout out of any length of time, a decade seems a safe duration to choose.

I understand that time is how we measure home – length of time builds bonding with places and the more time the greater the pain of separation. So perhaps the law is simply saying it’s less inclined to tear someone away from the U.S. the longer they’re here, for, say, humanitarian or sentimental reasons. Of course people shouldn’t be torn from places they love, but neither should they be exiled from places just because they lack nostalgia for them. Isn’t nostalgia itself an unfair standard to measure deservingness to enter and remain? Does that mean a ten year old citizen is more easily deportable than a ninety year old citizen, since the latter is clearly more closely bonded with their city or state? What about the U.S. citizens who live in a place, but don’t like it very much (say, teenagers who are tired of their boring hometown), should they be forced to go? No, of course, because citizens cannot be deported at all.37 Thinking it through reveals there is nothing equitable about bean-counting years as it treats non-citizens compared to citizens.

Nellie eventually lived in the U.S. for several decades after her arrival, but before doing so, of course, she could not have claimed deservingness on this ground. I have lived in the United States almost since I was born here, in July 16 of 1982. (I say almost, because counting all the time I’ve spent outside the U.S. leaves me with thirty one and a half years, give or take, of living inside the territory of the U.S). The rationale in immigration law implies that these three decades are a sort of fertile temporal soil out of which my deservingness has sprouted. Yet, as we’ve seen, even for the non-citizen born outside the U.S. who nonetheless lives here for the same period of time, the law says the same is not true for them. One potential retort to the magical ten year line, or for that matter to birthright citizenship, or any other arbitrary rule, is that “we have to draw the line somewhere.” But actually, the whole point of a thousand blog posts on this very site is that no, actually, you don’t have to draw the line anywhere.38 Immigration law is fundamentally unfair precisely because it presumes it can draw a line at all.

III. Do I deserve to live here because I have family here?

The manifest of the S.S. Algeria does not show Nellie arriving with any relatives, though she was only 15.39 It’s possible that she had relatives here already, but it’s also possible she had no family here to greet her. In which case Nellie’s lack of family in the U.S. would today probably keep her out of lawful status her entire life, if not out of the country itself. The law makes out a number of ways for noncitizens to remain in the U.S. if they can show some special relationship to a U.S. citizen or legal permanent resident. For example, remember “cancellation of removal”? In addition to the ten years in the U.S., the undocumented noncitizen would have to show, among other things, that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of green card-holding spouse, parent or child.40 Putting aside for a moment the fact that this “exceptional and extremely unusual” standard is extremely high and incredibly difficult to reach,41 this relief shows that the immigration court is concerned, not with the life or death of the noncitizen(indeed their deportation could result in their certain death for all the immigration court cares (more on that below)) but with the “hardship” caused to the citizen or LPR. In other words the non-citizens presence in the citizen’s life must benefit them so much that their deportation would cause them this astronomically high level of “hardship.”

Open Borders: The Case editorial note: Check out Nathan Smith’s blog post The right to invite

But whether or not a person’s presence benefits or does not benefit a U.S. citizen is really just a way to measure someone’s worth or desirability based on how much use they are to others. The law of “cancellation of removal” is saying the non-citizen has no inherent worth, not by themselves anyway – their value is measured only by how much their absence does or does not negatively affect citizens, whether financially, socially or otherwise. This is an unambiguous statement about the inferiority or sub-human character of a person because they were born elsewhere. Of course plenty of citizens give no benefit to other citizens, but we don’t deport them. There are also many citizens who have no spouse or child in their lives, such that their deportation would really affect no child or spouse negatively, except themselves(for example,former Chief Justice of the Supreme Court David Souter or Oprah Winfrey) – but the law will not deport them.Reducing a person to what they’re materially “worth” is what the law does when it asks about their “family ties” and how much “hardship” they would cause the citizen if they were exiled from the country. The inquiry is just a euphemistically veiled process of treating a living human being like a broken kitchen appliance, which is to say like an object, and disposing of them with proportional inhumanity when they’re without use to a citizen. This idea that a noncitizen’s worth can be altered only by way of their relationship to a citizen is also the foundational idea for how many people acquire the infamous green card, or permanent residency in the U.S. Unless you can get a green card through an employer (itself a difficult task),42 or something called the “diversity lottery” (you can’t get more arbitrary than a lottery!),43 or you’re one of the rare ones who gets some form of (very) rare humanitarian relief,44 acquiring a green card through a close family member is just about45 the only other way one can hope to acquire permanent residency in the U.S. Assuming you meet a handful of threshold criteria,46 you might be able to get a green card, for example, through a spouse, parent,twenty-one-year-old-or-older child, or sibling. Without one of these relationships the law will deem the noncitizen undeserving of living in the U.S., classifying such a person as an invisible non-human creature, until they are bestowed with equality and humanity through their marriage to or parenting of a citizen. Again, this rulesuggests that citizens can bestow worth upon noncitizens, but not vice versa – implicitly assigning more humanity to one than the other.

As it happens, I am not married to my partner, so if I lost my citizenship through, say, some vicious reinterpretation of the Fourteenth Amendment, my partner wouldn’t be able to help me stay here at all – our relationship, like my worth as a person, would be invisible to the law.I do have two parents and a brother in the U.S. who are U.S. citizens, and I suppose, in a scenario where I was without U.S. citizenship,I could rely on them as the measure of my value as a human being. I’m certain, however,that were I to try and make out a claim for “cancellation of removal,” I could absolutely not show “exceptional and extremely unusual hardship” to thesefamily members in any event(a standard which is, it bears repeating, unbelievably high),47 because they simply don’t rely on my enough to make my departure “extremely unusual,” to them. Yet, no one’s ever come knocking on my door with a one-way ticket for Naples or forced me to weigh my right not to be exiled from my life in the U.S. against how useful I am to other, more privileged people.

IV. Do I deserve to live here because I would face danger elsewhere?

To quote Teresa Hayter, “I do not accept the moral distinction between political refugees and those who cross frontiers in search of work.”48 This is not meant to lessen at all the moral imperative of giving sanctuary to the asylum seeker – but is instead meant toaffirm the right to immigrate as so fundamental and unconditional, that the reason for a person’s migration is irrelevant. We should not even reach the question of why the person is migrating because, as Hayter put it, “the people best able to decide whether they need to migrate, or to seek refuge, are migrants themselves.”49 Any implication that an asylum seeker has even a smidgen more of a right to enter and remain than someone coming for different reasons, serves to deny everyone their fundamental right to migrate.

The most common way a non-U.S. citizen might seek safety in the U.S. from danger in their home country is through asylum – but qualifying for asylum is notoriously difficult because it requires applicants to squeeze through some very narrow criteria. Like birthright citizenship, the narrow criteria of asylum eligibility highlights the arbitrariness with which the law excludes so many people, even under asylum law’s most liberal interpretation. Under asylum law, a noncitizen may remain in the U.S. if they can demonstrate that they have been persecuted or have a “well-founded fear” of future persecution in their home country. But actually, it’s much narrower than all that – because the non-citizen has to show they were or will be persecuted on account of their race, religion, nationality, their political opinion, or their “membership in a particular social group”50– persecution for any other reasons, or danger from any other source, won’t get you asylum.51 But actually, it’s even narrower than that, because the non-citizen also has to show their government can’t or won’t protect them from the persecutor, and that theycan’t relocate safely within their own country, and they have never participated in the persecution of anyone else themselves, oh and that they’ve never committed a “particularly serious” crime anywhere.52 If you can’t show all of these things – and I do mean all of these things – the person can be deported, even if their deportation would lead to their death, or immense suffering, or a life of grinding poverty, or anything else really.53 That means there are many more scenarios that asylum does not protect you from than the ones it does protect you from – crushing poverty, natural disasters, disease, etc. – even if the end result is the same and just as likely: your bodily harm or death.54

Suppose Nellie, 15 years old, were someone who faced poverty, or sickness, or death or murder if returned to Italy (I have no idea what she actually faced if she was returned to Italy, although poverty is a safe bet). The question of who, under asylum law, “deserves” to live in the U.S. (this often means who deserves to live at all) is ultimately in such tension with the idea of equality, that it does not take much effort to imagine multiple scenarios that highlight this. Let’s list some scenarios in which asylum law would not protect someone like Nellie from harm. Feel free to reflect on whether or not you feel the scenario increases or decreases Nellie’s deservingness to enter the U.S. as compared to someone eligible for asylum, which is to say the merits of Nellie’s right to live at all (I would invite you to substitute your own loved one’s name for Nellie’s):

Suppose Nellie faces lethal poverty in Italyif she is not permitted to enter and stayin theU.S., does she deserve to enter and stay as much as a traditional asylum seeker? What if Nellie is certain to return to homelessness or famine? What if a volcano went off in Italy and covered Naples in a pyroclastic flow – does she deserve to flee and enter the U.S. as much as an asylee now? Suppose Italy is engulfed by civil-war, or the government collapsed and Naples is just Mad-Max-like bedlam ruled by pale gangsters in spikey cars, does she deserve to flee and remain in the U.S.? What if Naples has the highest murder rate in the world? What if it has the highest rate of accidental traffic death in the world? What if turn-of-the-century Italy is overcome by the ebola virus? What if it’s sinking into the sea? What if the water was tainted or a chemical-plant exploded and there was just a higher risk of poisoning or food-born illness, not certain doom, but a much higher likelihood of doom, does she deserve to enter as much then?What if it’s just a higher risk of doom instead of a much higher risk? Are you willing to let your loved one risk it? Forget big macro-level causes of death, what if Nellie is being chased by a bear, and the only way to save her life is to let her cross the border? Replace the bear with a chainsaw-wielding maniac, how does her life fare against an asylee’s life now? What if Nellie needs medical attention she can’t get in Italy? What if she needs medication or care for a chronic illness she can’t get in Italy, and staying there is certain to cut her life short? What if Nellie’s crossing the border is the only way to save someone else’s life? Maybe she has blood or a kidney someone needs. How about if that someone else is a noncitizen? If they’re a citizen does your answer change? What if Nellie has a toddler and Italy has the highest infant mortality rate in the world? What if it’s your toddler? What’s if it’s you?

Open Borders: The Case editorial note: Check out John Lee’s blog post Junk the international refugee system, and open the borders

How little it would matter to any of us exactly what the cause or method of our loved one’s death or maiming is – all we would care about is the fact that they faced death or maiming at all. How unwilling we would be to weigh in our minds their merits of living or even their merits of being happy, against someone else’s “stronger” claim to life or happiness. Why then should immigration law distinguish in the same way between other people’s lives – between who deserves sanctuary from harm and who doesn’t? Why should, in each scenario above, a non-citizen be denied asylum (and they would be, in each of those scenarios above, with the possible exception of the chainsaw wielding maniac56), denied the right to live, or the right to be safe, because their method of death or maiming just didn’t fit one of the five protected grounds?57 Why would we limit at all the number of grounds for which we’re willing to protect human life or human freedom?There are few examples outside asylum that show as clearly as it just how unambiguously the law values the lives of non-citizens less than citizens.

V. Do I deserve to live here because I am a human being?

I have a right to be here because I am a person and this is my planet. I’m unwilling to gauge anyone else on any criteria beyond those. These laws raise questions about what broader principles of inequity are at work behind them, but here are some possibilities: noncitizens are worth less than citizens; humanity is tied to citizenship; non-Americans are sub-human; the value of human life is contingent on locus of birth.

When a person’s right to something is not recognized, the law must instead rely upon an arbitrary judgment of their deservingness in order to determine their fate. Toask whether someone deserves to be free or safe is to make that person’s wellbeing entirely dependent on the discretionary mercy, compassion or contempt of someone else. Author and professor of political science, Ayten Gündoğdu describes this condition of the immigrant as one of “rightlessness,” that is, having not even the right to have rights, becausethey have “lives that are dependent on the favors, privileges, or discretions of compassionate others.”58 Gündoğdu observes that relying on the “capricious moral sentiment” of others, instead of enjoying the protection a right would afford them, “risks unmaking the equal personhood of migrants.”59 A person dependent on compassion to be alive is a person without a right to be alive. Without a right to be here a person loses their status as an equal human being altogether, and they will be subjected to state violence vis-à-vis a thousand arbitrary rules animated by the moral inequity of rightlessness. Sorting through the cruel minutia of U.S. immigration law, I can find no rational justification for why I have more of a right to be here than someone else born, raised, or running from somewhere else. And I can see no reason in the idea that my great grandmother or someone like her, had or would now have less of a right to enter and remain than anyone else born or raised or related to someone here. All I can see in the immigration laws are double standards – one set of rules for this group of people and another set of rules for that group of people – all justified by the dehumanizing idea that U.S. citizenship is the arbiter of human worth.Either everyone has a right to be here, or no one does. Anything in between is a lie.

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Footnotes

1 More on this right to come in future posts.
2 “Nationality itself has its origins in racial thinking and still bases itself on birth and origin in ways that echo racialism.” Aviva Chomsky, Undocumented: How Immigration Became Illegal 14 (2014).
3 I do not use the word ‘hate’ lightly. In my view, racialism and white supremacy cannot be separated from U.S. immigration law and policy (I’m not even convinced they can be separated from the very concept of nationality). See supra note 2. Like the ideas that fuel racist ideology, the ideas encouraging immigration restrictions are often sub-conscious and the person acting on them may be unaware they are doing so, or may believe themselves to be unbiased. Nonetheless, these ideas come from a place that is very much fueled by hate, inasmuch as the word ‘hate’ is semantic shorthand for those beliefs that allow us to de-humanize other human beings. That is how I’m using the word here.
4 See ship manifest on file with author.
5Under “occupation” the shipping records list my great grandmother’s occupation as “Help”. See shipmanifest on file with author.
6 The Chinese exclusion Act of 1882 prevented persons of Chinese or Japanese ancestry from migrating to the United States. [FIX!] See Erin L. Murphy, “Prelude to Imperialism”: Whiteness and Chinese Exclusion in the Reimagining of the United States, 4 J. of Historical Sociology 457-490, 476 (Dec. 2005).
7 See Hiroshi Motomura, Immigration Outside the Law 67-68 (2014).
8 Black’s Law Dictionary (9th Ed., edited by Bryan A. Garner) 619 (2009).
9 See 8 U.S.C. 1182(a)(4).
10 See, e.g.,http://money.cnn.com/news/specials/storysupplement/bankbailout/.
11 Teresa Hayter, Open Borders: The Case Against Immigration Controls (2d Ed.) 2004, at 161
12 Hayter, at 161.
13 Hayter, at xxV.
14 Many others have already made these argument far better than I can. At any rate, one does not need to reach or rely on these if one accepts that immigration restrictions are wrong in principle, regardless of their outcome.
15 Of course I’m far from the first to confront these questions – others have asked them before and in more eloquentprose than I (See, for example, the writings of Joseph Carens, Linda Bosniak, or other authors referenced here). I engage these questions again here both because (our world being what it is) they bear repeating, and because I think it is important for immigration lawyers, who may be seen as proponents of the immigration system, to be vocal about their personal opposition to immigration restrictions generally.
16 Aviva Chomsky at 20.
17 See 8 U.S.C. § 1401.
18 Motomora at 98.
19 Chomsky at 36.
20 HAYTER, at 152.
21 In one 2009 case, for example, a man who was “born in Mexico in 1972 and 1973,” was nonetheless ordered deported. See Hernandez-Aguilar v. Holder, 2009 WL 4067644 (9th Cir. 2009), 86 No. 46 Interpreter Releases 2932, at 2935 (2009).
22 Chomsky at 19.
24 Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).
25 See Cristina M. Rodriguez, Symposium: The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363 (2009).
26 See Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).
27 See, e.g.,U.S. v. Wong Kim Ark, 169 U.S. 649, at 688 (1898)(“. . . the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the constitution.”).
29 In theory, of course – barring any statute or like-policy that would preclude a retroactive application of such a catastrophic idea.
30 Actually, this justification is not even afforded to non-citizens in immigration law as much as you might imagine – and there are plenty of circumstances where living here for decades earns you nothing in the eyes of the law, save a prison cell and a flight back where you came from.
31 In addition to continuous presence in the u.s. for ten years, the person must have “good moral character,” not have been convicted of certain crimes, and demonstrate that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of Green card holding spouse, parent or child. See 8 USC 1229b(b)(1).
32 See 9 USC § 1259.
33 33SeeJeh Charles Johnson, “Memorandum: Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” November 20, 2014; John Morton, “Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens,” June 17, 2011
34 For what it’s worth, I hate this term “undocumented,” but I have not year heard of any more polite alternative to describe persons residing in U.S. territory without the permission of the U.S. government. I welcome others to volunteer alternative nomenclature because I am actively seeking out the same.
35 35See, e.g., Galvez-Martinez v. Holder, 356 Fed.Appx. 47, at 49 (9th Cir. 2009) (“Petitioners’ argument that Jose’s longer physical presence in the United States should be imputed to his daughter Alma so that she might satisfy the 10-year statutory presence requirement of 8 U.S.C. § 1229b(b)(1)(A) is foreclosed … [t]he BIA correctly found that Alma lacked the 10 years of physical presence necessary to qualify for cancellation of removal.”)
36 There is actually an exception to this rule – a temporary absence of no more than 90 consecutive days is permitted, but if the aggregate amount of time outside the U.S. is 180 days or more, then you areineligible, strict standards that open themselves up to the same criticism the strict 10 year-rule does. See8 USC § 1229b(d)(2).
37 See Lopez v. Franklin, 427 F.Supp. 345, 347 (E.D.Mich. 1977).
38 See literally any post on this website.
39 See ship manifest on file with author.
40 See 8 USC 1229b(b)(1).
41 For example, the fact that a non-citizen’s U.S. citizen child, upon the non-citizen’s deportation, would suffer from poverty and poor schools in their home country was simply not unusual enough, let alone extremely unusual, to rise to the level of the kind of hardship you’d have to show. SeeIn Re: Angel Lojano A.K.A. Manuel Pauta, 2012 WL 1705667, at *2.
42 For example, you might be able to get a green card through employment if you were an Iraqi translator for the U.S. government, you worked on the Panama Canal, you’re “an alien of extraordinary ability,” (i.e. you’re a genius in your field, and not, as it sounds, a Kryptonian) or if you can show there aren’t enough “U.S. workers able, willing, qualified and available to accept” the job you want. See, e.g., U.S. Immigration and Customs Service’s “Green Card Through A Job” at http://www.uscis.gov/green-card/green-card-through-job.
43 See 8 U.S.C. § 1153(c).
44 Only a few forms of humanitarian relief, each more difficult to acquire than the last, provide a path to a green card,including such options as asylum, relief under the Violence Against Women Act, special immigrant juvenile status, a U-visa (given to certain non-citizens who were the victim of crime in the u.s. and reported that crime to the police) or T-visa (for victims of human trafficking). If you’ve lived in the U.S. since January 1, 1972, you’re also eligible for a green card, but there aren’t many undocumented people left who’ve managed to live under radar for forty three years.
45 You can also get a green card via that cancelation of removal thing I mentioned before, or by being one of the
slippery 43+ year olds whose evaded capture since 1972.
46 You’ve entered lawfully, or in some cases you have no unlawful presence, or you have a waiver for one of these, or there’s actually not a ten year wait for someone in your category, etc., etc., etc.
47 “Extremely unusual” means the hardship must be “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here,” so even though a mother demonstrates that her deportation would cause her daughters, aged 11 and 6, to “face complete upheaval in their lives and hardship that could conceivably ruin their lives,” in Mexico, this still does not rise to the level of “extremely usual,” because any child forcibly taken away from their family and lives in the U.S. would have their lives ruined. See In re Andazola-Rivas, 23 I. & N. Dec. 319, at 322-324 (BIA 2002).
48 Hayter, at vii.
49 Hayter, at xxv.
50 (a phrase that is legally more complicated than I can possibly relate here).
51 See 8.S.C. § 1158(a).
52 See 8 U.S.C. § 1158(b).
53 One possible exception to those denied asylum is relief under the Convention Against Torture (CAT) – which doesn’t require persecution on one of those five protected grounds, but does demand you meet a much higher burden of proof – vastly reducing the number of people who can seek refuge under CAT.
54 See, e.g., Begzatowski v. I.N.S., 278 F.3d 665, 670 (7th Cir. 2002) (“. . . if war, famine, political violence or other dangerous conditions affect an entire nation, those conditions cannot establish an individual claim for asylum.”). Sichone v. Gonzales, 183 Fed.Appx. 50, 51 (2d. Cir. 2006) (finding Zambian applicant ineligiblefor asylum, even though “however regrettable” it may be, the applicant is HIV positive and will not have access to medications in Zambia.); Fakalawa v. Mukasey,279 Fed.Appx. 573 (9th Cir. 2008) (finding applicant ineligible for asylum because she “only fears a life of poverty,” if returned to Fiji).
55 Take, for example, the guy who was not eligible for asylum even though his home was destroyed by a Hurricane and he was indebted to the mob. See Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190-91 (10th Cir. 2005).
56 If, say, the maniac were trying to kill Nellie because of one of those five protected grounds and Italy could not protect her from said maniac, then she might have an asylum claim – but if the maniac were just a serial killer, then she would not no claim.
57 One might qualify for relief for similar relief to asylum, such releif under the Convention Against Torture (CAT) where they don’t qualify for asylum, but each comes with their own comparably narrow, inequitable criteria. See, e.g., Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005).
58 Ayten Gündoğdu, Rightlessness in an Age of Rights 93 (2015).
59 Gündoğduat 113.

A Billion Immigrants: Continuing the Conversation

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, 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 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

Let them come: treasuring the immigrant legacy of Thanksgiving

US President Barack Obama’s announcement of deferred deportation for millions of irregular migrants is a wonderful gift for many American families this Thanksgiving, whatever the greater (de)merits of his executive action. Truly, the biggest regret one might have is that Obama did not go far enough. Or to put it in the way only an Onion headline can, “5 Million Illegal Immigrants To Realize Dreams Of Having Deportation Deferred.”

As I’ve written, no sane person can defend the immoral persecution which most of these immigrants living in the shadows unjustfly face. But if you haven’t considered the issue well enough, you might unfortunately produce such dross as this cartoon that recently ran in the Indianapolis Star:

Indianapolis Star anti-amnesty cartoonIt is truly curious to me that the main reaction of the mainstream media was to label this as racist. The Indianapolis Star actually initially responded to criticism by removing the immigrant’s mustache and republishing an otherwise identical cartoon! Of all the the things wrong with this image, race is the last thing I would single out. The problem isn’t inherently its depiction of race relations; if anything, it’s hard to say without knowledge of the political context what the ethnicity of that immigrant might be. The problem is inherent to this image’s portrayal of how immigrants actually conduct themselves in society.

Now, the basic idea of this cartoon is pretty simple: immigrants need to ask the government for permission to settle in a new country. Without permission, these immigrants are akin to trespassers. Just as it is wrong for me to set foot in your house without your permission, it is wrong for migrants to set foot on the country’s soil without its government’s permission. In short: illegal immigration violates citizens’ “collective property rights“.

There’s a fundamental problem with this analogy, because it ignores the simple reality that irregular immigrants are not trespassers. After all, what exactly is the problem with me sitting down at your Thanksgiving dinner table, uninvited? The problem is that I am there without your permission.

So where are the immigrants sitting themselves down at dinner tables uninvited? What have they done that is the equivalent of inviting themselves over to stay at your house? The reality is that most immigrants, even those who have entered unlawfully, have done no such thing. You cannot say with a straight face that millions of people have literally invaded the homes of Americans.

The average undocumented immigrant paid for his own passage. Transportation providers — some unauthorised coyotes, others actual bus, train, or airline companies — offered these migrants a seat in return for the market rate. No trespassing or theft occurred; the transportation carriers gladly and willingly offered their services because they were compensated by these migrants. You cannot say these migrants robbed Greyhound by daring to buy a bus ticket.

What next? The migrants settled down, and began looking for work. Again, your average migrant isn’t illegally camping out in someone’s house, or sleeping on the sidewalk: your average migrant is renting a room or a home from someone. It is generally agreed that some one-third of undocumented immigrants in the US actually own their own homes! Whose property were they trespassing on when they paid their rent, or paid the market price for their own home? Who did they steal from?

You may think me obtuse: after all, the answer is that these people trespassed on the land collectively owned by all citizens of the country they’re in. But this frankly ignores the reality that the laws of the US, and most countries, recognise no such concept as collective ownership: if the land belongs to you, John Doe, then you get to decide what to do with it, as long as all applicable real estate, zoning, or tenancy laws are followed. The furthest that most democracies go is limiting the sale of land to foreigners, but in such cases, foreigners remain free to rent their own homes from citizen landlords: after all, the homes belong to the individual citizens, not to the state.

Now, am I saying that there is no public interest in managing the flow of migration, no sovereign authority competent to regulate the flow of people across borders? No; I simply hold that the authority of governments to regulate borders flows from the public interest — not “collective property rights”, which don’t exist outside of communist states which refuse to recognise an individual right to private property.

The invocation of “property rights” as an excuse to dispossess people of property they have paid for in this particular instance is particularly ridiculous, because in no other arena of public life in a modern civilised state do we see such logic trotted out. When the government bans you from building a meth lab in your backyard, nobody says the government is justified in doing this because the citizens that collectively own your land haven’t given you permission to do that. The problem with you building a meth lab on your land isn’t that you failed to obtain the necessary permission from the collective that owns it. The problem is that the public has an interest in not having their own homes burned down if your meth lab explodes.

Immigrants who actually enter with the intention to commit crime, to steal, to trespass on private property — these are immigrants the government ought to detain, punish, and perhaps exclude via deportation. There I think I and the cartoonist have no quarrel. But where we differ is that the cartoonist clearly believes those who enter with peaceful intentions, those who pay for the homes they live in and the food they eat with the wages of their own sweat, are somehow also tantamount to criminal trespassers.

It is as though you tore down the treehouse I built in my backyard, using the lame excuse that some people might build meth labs in their backyards; that if I really wanted to build a treehouse I should have waited eighty years in line for the requisite bureaucratic approvals to prove that I’m not building a meth lab; that if I don’t like waiting eight decades to jump through bullshit hoops just to go about my own quiet business, I still have no right to question this because it’s the public’s land, not my own.

When it comes to travel, there is an obvious public interest in detaining criminals, treating contagious disease-carriers, and deterring invading armies. This is equally true inside a nation’s borders as it might be true outside. The health and security of the populace are obvious public interests where governments have a role to play. To the extent that we might impose restrictions on where someone can travel, these controls are justified not by imaginary collective property rights, but by the defence of the nation against actual threats to public safety and order.

I say, if someone wants to go somewhere in peace, and is willing to pay the required fare, it’s simply none of my business where that person goes. As long as he doesn’t trespass on my home, I have no business interfering with the peaceful conduct of that person. And if that person pays market rent for a home, I certainly have no business telling that person he is a trespasser — that he ought to get out of the home he has already paid the market price for.

It is all the more shameful and regretful that this ignorant, dehumanising cartoon had to mark the festival of Thanksgiving — a traditional American holiday which commemorates the cooperation of Pilgrims who immigrated to North America with the native Americans who welcomed them. In reality, of course the picture is much less rosier than the traditional account; the Pilgrims themselves might have had peaceful intentions, but many other European colonists were certainly more invaders than immigrants. And of course there is something to be said for the accuracy of this depiction, from a New Yorker cover marking Thanksgiving a few years back:

New Yorker cover of Pilgrims as illegal immigrants

But all the same, whatever the evils wrought by invading colonists, the people of the United States today owe their heritage to peaceful immigration. Most of their ancestors — poor Germans, Irish, Italians — came not to steal land, but to rent or buy their own homes in peace, and build a better future for their families through hard work. Thanksgiving is a holiday which at least in the popular imagination marks the American legacy of immigration — and yet ironically, sentiments like those of the Indianapolis Star cartoon endorse Soviet- or Maoist-style collectivism, the antithesis of all that the US stands for!

Amidst all those Americans who will mark this Thanksgiving by complaining about immigrants who have done nothing worse than crawl through sewers for the chance to pay market rent and earn a market wage, I hope at least some might remember the words of another President, one George Washington:

The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations And Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.

There was no qualification for who could or should be welcomed, as long as their conduct was decent. Most immigrants conduct themselves no worse than anyone else: they pay the fair price for their homes, and they expect only a fair wage for their labour. There is nothing indecent or improper about that. The janitor in your office and the line cook in your cafeteria are not invading anyone’s home. It disgraces Washington to pretend otherwise — to pretend that paying rent constitutes theft and trespassing.

People say that today is different; that things have changed. That’s not how I see it. People have always used bigotry to justify excluding innocent people from our societies, always ignorantly used prejudice to justify treating common people as though they are criminals. And people struggling to earn the dignity of a better life with honest labour have always been willing to risk it all for their dreams of a better tomorrow. It is as true today, and as true for people of all creeds and colours, as it has ever been:

Liu said he was happy to hear what his children told him one day about American history that they studied at school: “America was actually founded by people like dad who was unhappy with his home country and decided to take a boat to come to America.”

Liu said, “I heard their boat was called the May Flower. Mine was called Golden Venture.”

There may be much to regret in the history of Thanksgiving — in how many European newcomers to the Americas came as invaders, rather than peaceful immigrants. But all the same, the legacy of Thanksgiving is one of freedom of movement, freedom to search for a better life wherever your peaceful ambitions may lead you.

I am not American myself, but I am grateful today that I at least have the unearned privilege of being able to live in peace in the US. I am grateful that America’s legacy of open borders defended moral decency and civilisation from the depravity of dictatorship during World War II; that, as my German colleague Hansjoerg Walther says, American open borders changed the course of world history. I am thankful for the truly American legacy of open borders:

Haudenosaunee protest new border regulations

To all my American friends, happy Thanksgiving.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anti-Chinese poster

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

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

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

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

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

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

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

Ellis Island and keyhole solutions

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

Then versus now alert

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

The legislative backdrop

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

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

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

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

Whites/Europeans only?

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

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

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

How did Ellis Island process potential immigrants?

Here are two quotes from the Wikipedia page:

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

The trickiest part appears to have been the medical inspections:

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

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

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

A few things that struck me:

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