Do illegal immigrants have an obligation to obey laws banning them from entering the United States?

April 7

One oft-made argument against illegal immigration is that it is morally wrong simply because it is illegal. Immigrants have an obligation to obey the law. If they violate it by entering the country illegally, that by itself is enough justification for deporting them, regardless of whether their illegal entry actually harms anyone or not. In an interesting recent Fox News interview, former Florida governor and possible Republican presidential contender Jeb Bush takes issue with some aspects of this argument:

Jeb Bush said the debate over immigration reform needs to move past derisive rhetoric describing illegal immigrants.

The former Florida governor said in an interview Sunday in College Station, Texas, that people who come to the United States illegally are often looking for opportunities to provide for their families that are not available in their home countries.

“Yes, they broke the law, but it’s not a felony. It’s an act of love, it’s an act of commitment to your family,” Bush told Fox News host Shannon Bream at town hall event at the George Bush Presidential Library Center….

“I honestly think that is a different kind of crime, that there should be a price paid, but it shouldn’t rile people up that people are actually coming to this country to provide for their families,” he said.

“I think we need to kind of get beyond the harsh political rhetoric to a better place.”

In contrast to many critics of illegal immigration, Bush recognizes that the reasons why illegal immigrants violate the law matter to any moral evaluation of their actions. Those reasons might be irrelevant from a standpoint that condemns all illegality equally, regardless of the situation. But few Americans actually endorse any such position. To the contrary, most believe that many violations of the law are perfectly fine. For example, most people violate speed limit laws almost every time they drive to work. Most businesses violate at least some OSHA regulations. Most readers of this blog are probably federal felons, at least if they are anything like the average American, who commits about three federal felonies every day.

The point is not just that we violate laws all the time, but that in many circumstances we don’t consider it morally wrong to do so. If you violated the speed limit on your way to work today, you probably do not believe you did anything ethically questionable.

I. Illegal Immigration is Easily Justified Under a Weak Presumption in Favor of Obedience to Law.

Many people implicitly assume that there is only a relatively weak moral presumption in favor of obeying the law. If obeying a law is inconvenient and violating it is unlikely to harm anyone, they believe that violation is morally justified. That explains why most people believe it is morally permissible to violate the speed limit laws, so long as you don’t drive so fast as to seriously endanger other drivers and pedestrians. Strict compliance with the speed limit would be annoying and inconvenient, and make it harder for us to get to our appointments on time. Ditto for violations of various federal regulations that ordinary citizens and small businesses routinely run afoul of. Obeying all of these laws to the letter would be costly and inconvenient, and most people believe it is all right to violate them in cases where there is no significant harm to others.

If you apply this theory to illegal immigration, it becomes clear that illegal immigrants have a much stronger case for violating immigration laws than native-born citizens do for their routine violations of the speed limit and various petty federal regulations. For most illegal immigrants, obeying the law would harm them a lot more profoundly than merely making it harder to get to work on time. It would consign them to lives of poverty and oppression in the Third World, a harsh fate imposed on them through no fault of their own, merely because they were born on the wrong side of a line on the map. And, just like going slightly over the speed limit, merely crossing a boundary and seeking out employment from willing employers does not harm anyone in itself, certainly not in any significant way.

Some illegal immigrants do, of course, harm others by committing violent crimes or by using welfare benefits to which they are not entitled. But to the extent that this is true, it merely means they have a moral duty to refrain from violence or from taking welfare benefits once they enter the US, not that they are morally obligated to obey laws restricting immigration itself.

II. Much Illegal Immigration is Justified Even Under a Strong Presumption in Favor of Obedience.

Not everyone who rejects an absolute obligation to obey all laws agrees that there is only a weak moral presumption in favor of obedience. Some believe that there is a very strong presumption that can only be overcome by extremely powerful countervailing considerations. For example, perhaps southern blacks were justified in violating Jim Crow laws in the days of segregation, because of the severe harm that those laws inflicted on them. But ordinary Americans today are not justified in violating laws that harm them in more modest ways.

Even on this view, illegal immigrants have a strong case. If anything is enough to overcome the strong presumption, it surely is a situation where obedience forces you and your family into life-long poverty and oppression that you did nothing to deserve, and violation of the law does not in itself harm anyone. The strong presumption theory might still condemn illegal immigrants who come from advanced liberal democracies, such as Canada or Britain. Life in these countries is at worst only modestly less happy and free than in the United States. But the vast majority of illegal immigrants are fleeing far worse condition – often even worse conditions than African-Americans endured in the Jim Crow era.

Finally, it is worth noting that scholars such as A. John Simmons and Michael Huemer argue that there is no presumption in favoring of an obligation to obey the law at all. They hold that a moral obligation to obey a law requires something beyond merely the fact that it was enacted by a government, even a democratically elected one. I have a lot of sympathy for that position. But here, I want to stress that many illegal immigrants would be justified in violating the law even under more conventional views about the extent of our obligation to obey the state.

The claim that illegal immigration is wrong because it violates the law is far from the only plausible argument against it. It is certainly possible to argue that illegal immigrants should be deported for a variety of other reasons. But the supposed wrongness of illegal immigrants’ violations of the law is often raised in discussions of the issue. So it is worth pointing out the flaws in that argument. Ultimately, if you believe that you are justified in exceeding the speed limit on your way to work, you have little basis for criticizing immigrants for illegally crossing the border.

UPDATE: Economist Bryan Caplan has an interesting post commenting on this one here.

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."
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Ilya Somin | April 7