Assessing immigration policy as if immigrants were people too

March 2

In a thoughtful recent post, co-blogger Eugene Volokh emphasizes that immigration policy decisions should take account of the full costs and benefits of letting in more people, including the danger that increased immigration might reduce the quality of government policy by increasing welfare spending or causing new restrictions on our freedoms. Eugene particularly emphasizes that we should consider the effects on liberty, since, as he puts it, “we should rightly value liberty highly.”

I completely agree. But in considering those costs and benefits, we should also take account of the benefits of migration to the immigrants themselves, and the severe infringements on liberty imposed by immigration restrictions. Immigrants are people too and debates over immigration should consider their welfare and freedom, not just those of native-born citizens.

I. The Costs of Immigration Restrictions – Including Liberty Costs.

For many current and potential immigrants, denying them entry or deporting them once they have arrived means consigning them to a life of poverty and oppression in Third World countries. That is a very severe harm indeed. It is also a serious infringement on their liberty. Freedom of movement is itself an important aspect of liberty, as is the freedom to seek jobs from willing employers or rent homes from willing landlords. To the extent that many of those who wish to hire immigrants or rent to them are American citizens, immigration restrictions infringe their liberty too, not just those of the immigrants themselves. Immigration restrictions are also a serious infringement on political freedom, especially for migrants fleeing authoritarian regimes for whom migration is their only realistically feasible way to exercise political choice.

Advocates of constitutional originalism (which include many conservative supporters of immigration restrictions) should also keep in mind that many immigration restrictions go beyond the limits of Congress’ powers under the original meaning of the Constitution. Unconstrained congressional power over immigration rests on many of the same kinds of nonoriginalist arguments for unlimited federal authority that conservatives decry in other contexts.

One can argue that the US government is not responsible for the poverty and oppression that exists in Third World countries, and therefore we have no moral obligation to let in immigrants fleeing from it. But when we restrict immigration, we do more than simply ignore poverty and oppression created by others. We actively use force to prevent immigrants from escaping those terrible conditions – even in cases where there are Americans who are perfectly willing to engage in voluntary transactions with those migrants, by hiring them for jobs or letting them rent housing. The US government in the 1930s was not responsible for the oppression of Jews in Nazi Germany. But it was responsible for using the threat of force to deny many of them an opportunity to escape that oppression by coming to America. Other defenders of immigration restrictions argue that they are morally unobjectionable because they can be analogized to restrictions imposed by private property owners on entry to their land. For reasons I discussed here, this argument relies on a false analogy between governments and private property owners.

II. What About Cases where Immigration Itself Causes Harm?

None of this proves that immigration restrictions are never justified. For the same reason that I reject absolute property rights and absolute rights to freedom of speech, I also reject an absolute right to freedom of movement. It is possible to imagine situations where free migration creates such great harm that immigration restrictions would be justifiable, or even morally imperative. But in considering whether that is actually the case in the real world, we must weigh the welfare and liberty of potential migrants as well as those of current citizens. And we must remember that immigration restrictions themselves inflict significant costs – including reductions in liberty – on immigrants and natives alike.

For these reasons, before endorsing immigration restrictions, we should ask the same kinds of questions as we would in other cases where someone claims that a severe infringement on liberty is necessary to avoid a great harm. First, we must consider whether the harm actually exists in the first place. Some harms ascribed to immigration are largely mythical, such as the claim that immigration leads to increased welfare spending.

Even when immigration causes genuine harm, we should consider whether the harm can be offset by measures less draconian than consigning would-be immigrants to Third World poverty at gunpoint. We do not accept violations of other important liberties any time doing so can help us avoid some harm. We first consider whether there is some other way to achieve the same goal. For example, we try to prevent racial discrimination without censoring racist speech, and we should try to prevent violent crime without allowing police to ride roughshod over civil liberties. Similarly, in many cases, there are numerous other options that are both more humane and politically feasible. In addition, there are likely to be many cases where immigration causes some harm, but eliminating it simply isn’t worth the price of imposing the more severe harms and infringements on liberty caused by immigration restrictions themselves.

Some of these points apply to Eugene’s example of the recent judicial decision upholding a public school’s ban on students wearing American flag t-shirts on a date when it might cause violence by offended Mexican-Americans. This problem can easily be avoided by a variety of means short of imposing immigration restrictions. Indeed, if immigration restrictionists were to redirect a fraction of the effort they devote to keeping out immigrants to defending freedom of speech in public schools, that alone might be enough to prevent these kinds of policies.

There are rare cases where immigration really does cause great harm that can only be alleviated by immigration restriction, just as there are rare cases where the only way to prevent a great evil is by censoring political speech. For example, Alexander Kerensky probably should have banned the Bolshevik Party, and the Weimar Republic probably should have suppressed the Nazis. In these extreme cases, censorship might have been the only way to prevent the even greater evil of allowing these forces to seize power and slaughter millions of people. The same point applies to great evils that can only be prevented by immigration restrictions.

But if we realize that immigrants are people too, we should set an appropriately high burden of proof before we decide to use force to consign them to lives of poverty and oppression. At the very least, we should demand proof that the claimed harm really exists, cannot be avoided by less draconian means, and is great enough to justify imposing severe infringements on liberty.

Ilya Somin is Professor of Law at George Mason University School of Law. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. He is the author of Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, 2013), and coauthor of A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan, 2013). Somin has been a visiting professor at the University of Pennsylvania Law School, the University of Hamburg, Germany, and the University of Torcuato Di Tella in Buenos Aires, Argentina. Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School in 2002-2003. In 2001-2002, he clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Professor Somin earned his B.A., Summa Cum Laude, at Amherst College, M.A. in Political Science from Harvard University, and J.D. from Yale Law School.
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