Tag Archives: US Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related reading

Immigration and the US Constitution

This is a guest post by Ilya Somin, a professor of law at George Mason University and blogger at The Volokh Conspiracy (posts by Somin only). Somin has argued for substantially freer immigration, particularly in the context of immigration to the United States, on both moral and practical grounds. A list of some of his writings relevant to open borders can be found at the Open Borders page about Somin.

The US Constitution does not in itself tell us what kind of immigration policy is right and just. But it is relevant to debates over immigration in at least three important ways. First, some opponents of increased immigration mistakenly argue that the Preamble and other parts of the Constitution commit the US government to ignoring the potential benefits of immigration to would-be migrants themselves. Second, there is a strong case that the original meaning of the Constitution restricts Congress’ power to limit migration, though it does give Congress broad power to deny citizenship to migrants. Finally, some structural aspects of the Constitution help limit the potential “political externalities” of open immigration, thereby weakening claims that the only way to prevent immigrants from having negative effects on public policy is to keep them out of the country entirely.

I. The Constitution does not Justify Ignoring the Benefits of Immigration for Immigrants.

The Preamble to the Constitution states that the document’s purpose is to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Some opponents of immigration claim that the inclusion of the phrase “ourselves and our posterity” suggests that the Constitution was only meant to benefit present US citizens and their descendants, thereby justifying the US government in ignoring the rights and welfare of potential migrants in making decisions on immigration policy. However, the term “posterity,” as used in the Preamble, is probably metaphorical rather than literal – denoting future residents of the United States in general rather than merely just those who were citizens in 1787 and their descendants. In the 18th century, as today, the word “posterity” was often used to denote “future generations” in general rather than merely the biological descendants of a particular group of people. In 1787, and for almost a century thereafter, the US had a virtual open borders policy, and the Framers of the Constitution had no intention of changing that. They knew that millions of immigrants would be among the “posterity” referred to in the Preamble.

Even if we assume that the “posterity” referred to in the Preamble really does refer only to those who were citizens in 1787 and their descendants, it does not follow that that the Constitution justifies ignoring the effects of immigration restrictions on would-be immigrants. As the Founding Fathers well knew, there are moral limits on what governments are allowed to do in pursuit of the interests of their citizens. For example, the United States has no right to invade Mexico and enslave its people – even if doing so would enhance “the general welfare” of Americans. Similarly, there are moral constraints on the extent to which the US government is justified in forcibly consigning would-be immigrants to lives of poverty and oppression in Third World countries. Neither the Preamble nor any other part of the Constitution states that the US government is entitled to ignore moral constraints on the means it uses to achieve the goals of the Constitution.

A closely related restrictionist argument is the claim that aliens are not entitled to the various constitutional rights enumerated in the Constitution. In reality, most of the rights guaranteed by the Constitution are extended to all persons who enter areas governed by the United States, whether citizens or not. As James Madison put it at the Virginia ratifying convention for the Constitution, “[I]t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection.” In the few cases where the Constitution really does protect only citizens, the term “citizens” is explicitly used, as in the Privileges and Immunities Clause of Article IV, Section 2. Such explicit references to citizens would be unnecessary if there was an implicit understanding that all constitutional rights are limited to citizens alone.

II. Congress’ Power to Restrict Immigration.

The detailed enumeration of congressional powers in Article I of the Constitution does not include any power to restrict migration as such, even though it does include the power to make laws concerning the “naturalization” of foreigners and “regulate Commerce with foreign Nations.” The Naturalization Clause does not create a power to prevent foreigners from entering the country. It merely allows Congress to set conditions for the grant of citizenship.

The scope of the power to regulate “commerce” has long been a source of controversy. But at the time of the Founding and for many decades thereafter, the dominant interpretation was that it merely gave Congress the power to restrict trade and other commercial transactions, not to forbid movement as such. The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. Yet few if any eighteenth and nineteenth century jurists would have argued that Congress therefore had the power to forbid Americans from moving from one state to another.

In recent years, some leading legal scholars have argued that the original meaning of the Commerce Clause gives Congress the power to regulate all “social interaction” that affects multiple states or foreign nations. But this interpretation would give Congress nearly unlimited power, and is inconsistent with the dominant original understanding that congressional power was intended to be strictly limited in order to limit infringements on the power of the states. For a more detailed critique of the interaction theory, see this article by Georgetown law professor Randy Barnett.

Congress can restrict the entry of some foreigners by using its other enumerated powers. For example, the power to declare war and to spend money for the “common defence” includes a power to forcibly restrict entry by enemy spies, terrorists, and soldiers. The power to “define and punish” offenses against “the law of nations” presumably allows Congress to restrict the movement of pirates and other violators of international law. But there is no general enumerated power giving Congress the authority to ban the entry of people simply because they are foreign nationals.

Not until the Chinese Exclusion Act of 1882 did Congress adopt a significant law banning migration as such, as opposed to restricting eligibility for citizenship or excluding individuals who posed a specific threat that Congress could address under one of its other enumerated powers. And, even then, there was considerable controversy over the law’s constitutionality, despite the fact that the Act was popular due to widespread anti-Chinese prejudice.

Modern Supreme Court decisions such as Gonzales v. Raich hold that Congress has the authority to regulate virtually any “economic activity” (defined broadly enough to cover most migration) and that it has “plenary” power to restrict immigration. It is unlikely that these doctrines will be reversed any time soon. Adherents of “living constitution” theories of constitutional interpretation can, consistent with their commitments, support this overriding of the text and original meaning. But professed originalists – who include many anti-immigration conservatives – are in a more difficult bind. This is especially true in light of the fact that conservative originalists have been in the forefront of those arguing for a narrow interpretation of Congress’ powers under interstate Commerce Clause. If the term “commerce” has a narrow definition when it comes to interstate commerce, the same applies to foreign commerce, since the Constitution literally uses the same word to cover both, giving Congress the power to “regulate Commerce with foreign Nations, and among the several States.”

A possible way out of this bind for originalists is the claim that the federal government has an “inherent” power to restrict international migration, regardless of whether it is explicitly enumerated in the Constitution. That was in fact the basis on which the Supreme Court upheld the exclusion of Chinese in 1889. But if the Constitution presumes such an inherent power to restrict migration, surely there is an equally inherent power to control naturalization. Yet Article I includes an explicit grant of the power to establish a “uniform Rule of Naturalization.”

Finally, even if Congress does have the power to exclude migrants for any reason it wants, nothing in the Constitution requires it to do so. The Constitution allows federal and state governments to do many things that are ill-conceived or unjust, and large-scale restrictions on immigration could be among them.

III. The Constitution and Potential Political Externalities of Immigration.

Sophisticated critics of immigration – particularly conservative and libertarian ones – often emphasize the problem of “political externalities:” the danger that immigrants will use the power of the vote to cause harmful changes in government policy. Several parts of the Constitution help restrict such dangers.

First, as noted above, the Naturalization Clause gives Congress the power to restrict migrants’ eligibility for citizenship. Under current law, most legal immigrants are eligible for citizenship only after five years, and only if they speak a modicum of English and can pass a citizenship test that many native-born Americans would fail. This ensures that immigrants will be at least partially assimilated before getting citizenship rights, and makes it less likely they would support laws that undermine core American values. If necessary, Congress could lengthen the waiting period for citizenship, make the test harder, or both. Living for many years in a nation that denies them citizenship rights may be unfair to immigrants. But most would prefer living as a non-citizen in a relatively free and prosperous society to life as a full citizen in poor and often oppressive Third World nations.

Second, the Constitution’s requirement that each state has two senators leads to overrepresentation of states with small populations. Most such states are relatively rural states far from the East and West coasts, and they tend to have few immigrants. The resulting overrepresentation of native-born citizens diminishes the relative power of immigrant voters, and thereby helps alleviate any political externalities they might cause. The Constitution also restricts most powerful elected offices to citizens, and allows Congress to restrict non-citizen eligibility for federal welfare programs.

The political effects of the Naturalization Clause and the Senate are double-edged swords. In some cases, immigrant voters might use their influence to improve American public policy rather than make it worse. When that happens, restrictions on eligibility for citizenship and overrepresentation of native-born citizens in the Senate turn out to be harmful rather than beneficial. But those who worry about the political externalities of immigration are likely to be pessimists rather than optimists in their assessment of the influence of of immigrant voters. Such pessimists should welcome the fact that the Constitution has many mechanisms for controlling such externalities without resorting the more draconian approach of banning migrants from entering in the first place, and thereby consigning many to a lifetime of misery in the Third World.

UPDATE: At the Originalism Blog, University of San Diego Law Professor Michael Ramsey raises an objection that has also been advanced by some commenters on this site:

Professor Somin argues, among other things, that the Constitution’s original meaning does not give Congress general power to restrict immigration…

I think his argument may well be correct. But if it is, I think it quite plainly leads to a result Professor Somin does not mention, and which the folks at Open Borders do not want hear: it would leave to the states the power to restrict immigration.

I agree that the states had the power to restrict immigration under the original 1787 Constitution. But matters are far less clear after the Fourteenth Amendment, which, among other things, restricts state government discrimination against aliens. As the Supreme Court pointed out in Plyler v. Doe (admittedly in an opinion written by non-originalist Justice William Brennan), several of the framers of the Amendment specifically stated that one of its purposes was to curb such discrimination.

But if it turns out that the price of limiting congressional power to restrict immigration is increasing state power to do so, that’s a tradeoff I’m more than happy to accept. Some states might choose to severely limit immigration, but – thanks to interjurisdictional competition – others will embrace it. And life in any American state is a far better deal for immigrants than being consigned to the Third World, which is the effect of federal laws banning migration.

UPDATE #2: Michael Ramsey’s colleague and co-blogger Mike Rappaport comments on this post here. Mike agrees with me that “the Constitution does not give Congress the power to regulate immigration as such.” But he also argues that Congress does have the power to regulate some other types of international movement, such as crossing international boundaries for commercial purposes. I largely agree. But such restrictions are a far cry from being able to ban mere migration across international lines.

Mike also raises the issue of state authority to impose migration, barriers, but concludes (as I do above) that state migration laws are unlikely to impede immigration as much as federal ones do, given interstate variation and competition. He does not address my point about the ways in which the Fourteenth Amendment might restrict state governments’ power to regulate migration.

Finally, Mike suggests that if the Supreme Court had struck down the Chinese Exclusion Act in the 1880s, Congress might have been given the power to ban immigration by constitutional amendment. That is certainly possible. But the Constitution is extremely hard to amend, and it is far from clear that the supporters of the Exclusion Act had the necessary two-thirds majority in both houses of Congress, plus winning the support of three quarters of state legislatures.

Related reading

These links have been edited by the Open Borders: The Case editorial staff and were not vetted by the author.

Other related material by the author: Obama, immigration, and the rule of law [updated with additional material on precedents for Obama’s action, and a response to Timothy Sandefur] by Ilya Somin, Volokh Conspiracy (Washington Post), November 20, 2014.

Related Open Borders: The Case blog posts:

Relevant background material coverage on Open Borders: The Case:

The painting featured at the top of this post depicts the signing of the United States Constitution, and is available in the public domain.