The Washington PostDemocracy Dies in Darkness

What gives us a right to deport people? Joseph Carens on the ethics of immigration

Most people think that states have the right to decide which people they do or don't want to let in, and what rules they expect immigrants to follow. You reject that assumption. Why?

For most of the book, I don't challenge that assumption directly. Two-thirds of the book accepts that general assumption, which I call the conventional view, precisely because most people accept it, but I try to show that the conventional view is not quite as sweeping as people sometimes suggest.

Most people think there are some constraints on what the government can do to exclude people. For example, most people don't think the government has a right to decide whether native-born children of citizens will become citizens. It would be unfair to exclude such children from citizenship. But if the state can do whatever it wants, why would it be unfair to grant citizenship only to some of these children and not others? People take it for granted, as the natural state of things, that all these children will get citizenship, but of course it's not natural. It requires a rule. In fact, there have never been times when native-born children were denied citizenship, but there were times in American history when women lost their citizenship if they married non-citizens, or when Chinese people couldn't become citizens. These were unfair rules, rules that did not conform to what we think is the legitimate and proper thing to do in granting citizenship.

So I start with "Who ought to be a citizen and why?" and I ask why people who are born in the U.S. ought to be citizens. It's not just that it's in the Constitution, it's about what's right. What underlies that belief is a sense that these people belong to a community, and that they ought to be given citizenship because of their membership in that community. And I try to show that the same principle entails that the children of immigrants should get citizenship (as they do) and that immigrants themselves should get easy access to citizenship (as they do in the U.S. and Canada).

Then there's a set of other questions about what rights people who are guest workers or irregular migrants ought to have, and I try to show that they too have claims of membership. Again, I'm accepting the general premise that the state has the right to control admissions and has a lot of choice about whom to admit or exclude, but I'm trying to show that even within that, we do not actually accept a blanket right of the state to do whatever it wants in the area of immigration.

That's also true about admissions. We all recognize that, say, the government has a special obligation to admit spouses and minor children of citizens for reasons of family reunification, or to admit refugees. There might be debate about what the exact policy should be, but everyone admits that there is some obligation to accept refugees and immediate family members.

So  even the conventional view has important qualifications, which shows that there are a lot of moral claims that people have as immigrants, and potential immigrants, some of which we recognize, and some of which we ought to recognize. I sometimes feel that those opposed to granting legal status to irregular migrants seem to be making principled arguments, while supporters of legalization are making pragmatic arguments. But there are good arguments from principle to regularize people and make them citizens over time. I want to reclaim the moral high ground for regularization. These people have lived here for a long time, and the way they arrived just doesn't matter at some point.

Let's say I'm an opponent of legalization, and I hear your arguments, and I agree that it follows from common beliefs about immigration that undocumented immigrants should be regularized. What's stopping me from junking those common beliefs and keeping my belief that undocumented immigrants shouldn't be legalized, rather than keeping my common beliefs and junking my belief that legalization's a bad idea?

Basically, my arguments are aimed at people who think of themselves as Democrats or liberal Democrats. Nobody who thinks of him or herself as a Democrat thinks you can force people to convert from one religion to another, or that free speech doesn't matter. We've set up ways of organizing society that are built around certain deep moral principles. The book tries to make a series of arguments about those principles, and show how they fit together. Some people will accept those arguments, and some won't. Most people won't accept all of my arguments, but I hope that even people who reject some of my arguments will see that it is important to understand how our principles fit together and will see that respect for basic human rights has implications for immigration.

If you're going to say it's legitimate to deport somebody, then you've got to have reasons. You have to think about the objections to your reasons and work through the arguments. The point of this book is to step back a bit from the public policy debate about what kind of legislation can get through Congress. I don't try to think about that in this book, but instead about what we think is right and wrong.

I don't assume everyone will agree with me, but I do hope that people will agree that this is worth thinking about, and there's a fair bit of common ground around the premises from which we start. Most people think they're acting on the basis of principles. It's hard to go around the world and think that what you're doing is just about power. Most people think they live in a moral world, where there are principles that operate, and they think of those principles as consistent. People don't want to be hypocritical. Most people want to think that what they're doing individually and collectively is, in some sense, justifiable.

That's what I'm trying to get people to think about. Are these policies really justifiable? It may be our first instinct to say yes, but do they really make moral sense when examined more closely?

To veer a bit more toward the details of policy debates, one argument that's gotten a lot of purchase in the U.S. is this idea that undocumented immigrants who came here as children — "DREAMers" — have a special claim to citizenship, perhaps a stronger one than their parents. How coherent an idea do you think that is?

I think it's actually quite persuasive because you can't blame the children for being here. They've grown up in this society, they've got friends and connections, and this is really where they belong. You have to recognize that by giving them legal status.

Children are the strongest case for supporters of regularization. With adults, you can say that it's their fault, that they're responsible for breaking the rules, but the children are not responsible for breaking the rules. At some point, even the opponents recognize that. The opponents worry about incentives, but there's no story to be told about why these kids should be kicked out. This is their home, that's the reality, and I think ordinary people see that.

So it is a stronger claim than adults, you think?

If we start from the conventional assumption, which I adopt for most of the book, that the state generally has the right to control admissions, then you can see that someone who chooses to ignore that and come in without permission has a weaker claim than someone who hasn't chosen to violate that norm in coming here.

But it isn't black and white. Time affects the claims that people have. Here's one example that shows why. After World War II, West Germany admitted people from elsewhere for work and said, "You're here temporarily as guest workers," and the people who came accepted that. They would get jobs, but after a while they would have to return home. Then these people set down roots and after they had been there for five to ten years, at some point the German government recognized that they were members of society. The courts and politicians recognized that these people had been contributing members of society for so long that it wasn’t okay to kick them out, even if they became unemployed.

And once people are members of society, they ought to be able to become citizens. There's this idea that sometimes gets proposed to have people be permanent residents without getting a shot at citizenship. You can't do that in a democracy. Everybody living in a democracy on a permanent basis should get to be a citizen. The guest workers were admitted on the explicit understanding that they'd go home, but it was not enforceable. And something similar can be said about people in the U.S. who came without any permission. At some point, that just doesn't matter anymore.

Here is another parallel. For every crime except very serious felonies, there's a statute of limitations. It varies from state to state and from crime to crime. There's an understanding that, after a while, it doesn't matter anymore. You shouldn't be forever vulnerable for some minor wrong that you did in the past. There's a direct analogy here. If people have have lived here peacefully for a number of years, the fact that they violated some law in coming is not as important as their ongoing social membership. That's the main argument for why they should be able to stay. The initial violation of the law is just not as important morally as the reality of their membership.

That's an interesting point about guest workers. At what point do you think they obtain a right to stay, given that their entry is contingent on them agreeing to leave?

It's a mistake to think you can let people in with restricted rights without violating democratic norms. Most of the rights people have are either basic human rights or work-related rights — norms about hours and pay and safety and so forth — which everybody ought to have, or else they're rights based on reciprocity. It's not fair to make people pay into social systems, whether it's retirement or unemployment insurance, if they're not eligible for benefits. There can be waiting periods that apply to everyone, but it's not fair to exclude temporary immigrants from benefits forever if they pay in. So that's one limit on guest worker programs.

The second major limit is that, if people are present for five years or more, then you have to give them the right to stay permanently. I don't think guest worker programs are intrinsically bad. There are people who want to go back home after a year or two, and that's fine. But after a while, they gain membership.

You also carve out a special obligation for aiding refugees.

In the wake of the Holocaust, most people in democratic states felt a profound shame about the fact that their countries had refused to respond to the needs of Jews fleeing the Nazis. We all recognized that failure and vowed, "Never again," and so we set up the Geneva Convention refugee system.

And now all the rich states have set up systems to prevent people from accessing that system. You have to get a visa if you are coming to a rich state from a poor one, and if they think you will ask for asylum, they won't give you a visa. The boats and planes asylum-seekers come on are subject to tremendous sanctions if they transport people without the right documents. So, we're excluding people. And some of the people who are denied visas are in fact eligible for asylum. They are clearly refugees. It's an indiscriminate exclusionary system. In taking this approach, we have put the burden of taking care of refugees onto the neighboring states. Those are generally poor countries, as in the case of Jordan taking in Syrian refugees. That's just unfair, and it's a deep problem. I don't see a political solution to it, because there's not much interest in doing anything about it.

In the Syria situation, the refugees are fleeing an ongoing crisis, but there are countries that are in more-or-less permanent states of extreme deprivation, such as the Congo or Haiti. Should that be enough to claim refugee status? Or do you have to be escaping an actual genocide or civil war?

Right, there are cases where what's happening is not a direct genocide. The definition of "refugee" under Geneva requires membership in a group that's being "targeted." Like all definitions, it can be interpreted narrowly or expansively. For example, the U.S. has interpreted it expansively in regards to gender persecution.

My basic view is that, on the one hand, if you're going to treat being a refugee as a special claim, then eligibility has to be based on something more than the ordinary inequalities of the modern world. Saying we have an obligation to admit refugees is not an argument for open borders; we'll get to the open borders argument later. The case for admitting refugees is an argument that there are special circumstances where there are ongoing violations of human rights which people are trying to escape.

The Congo is a classic case. If someone fleeing the Congo manages to make it to our shores, you can't send them home. It wouldn't be right. If you think it wouldn't be right to send them home, then morally they're refugees, whatever the law says. Some people will say, "We didn't cause the problem, so why do we have to deal with it?" I think the case of World War II is so important because it was true then as well. That's the nature of the refugee issue. We have responsibilities to admit people because of the extreme dangers they face, even though we did not create the dangers.

Another distinction that's often drawn is between "high-skilled" and "low-skilled" labor. Is that a legitimate distinction for states to draw, accepting the premise that states are generally allowed to decide who they admit and exclude?

The general presupposition for most of the book is that states don't get to discriminate on the basis of race or religion, but they can normally select immigrants based on what they see as their interests. For immigrants for whom the state has complete discretion, and the immigrant has no special claim on the basis of being a refugee or a family member of a citizen, then it seems to me that states get to exercise economic criteria if they want to do so.

That's different from saying I think that's a good policy. I'm asking about what's just or unjust. It's a minimum standard. The question is whether it is actually morally wrong to prefer high-skilled immigrants. Canada, for example, has a point system where they put this in very explicitly. Many people think that's a model for other countries, because immigrants who come in under that program adapt well. I don't think there's anything wrong with that approach as long as these selection criteria do not turn out to be hidden proxies for racial or religious discrimination, and in the modern world I don't think they are.

In the past, states like the United States and Canada sometimes used techniques to restrict immigration to Europeans without acknowledging that that was what we were doing, but I don't think these selection criteria work like that. Again, I’m not saying this way of selecting immigrants is a good policy. In my book I'm concerned with questions of principle. I'm not trying to ask the question, "Will this immigration policy have good economic consequences?"

For the last third of the book, you reject the assumption that states have a general right to include or exclude, and make the case for open borders. A lot of people instinctively recoil from that idea. What's your pitch to them?

I start by looking at the way the world is organized today. It resembles feudalism. Being born into the United States rather than the Congo is like being born into the nobility rather than the peasantry in the Middle Ages. This completely random factor dramatically advantages and disadvantages people.

Everyone thinks feudalism was wrong. Why should some people receive special social status just by birth? But If feudalism was wrong, why doesn’t the same sort of objection apply to the way we have organized the world today? What we have to recognize is that the basic way in which the world is organized today is not natural. It is a human construction. And we have to think about whether or not this is a fair way to organize the world, because it can be organized differently.

So I ask people, "Do you think the way the world is organized is really fair?" Well, one of the ways in which it's unfair is that states are given this right to control who gets in and who cannot get in. That's key to the ability to have some very rich states and a lot of very poor states, because if the rich states didn't have that control, then people would move from the poor states to the rich states. And that's exactly what the people in the rich states are worried about.

So you have to ask, "How is this fair?"  I think it's not fair. I don't think the solution to that is to have all these people moving, because most people would rather live in the society where they're born. And they would stay there if the opportunities were adequate. The real point is that we have an obligation to make the world more equal, to lower the disparity. There are a variety of ways to do that, and immigration would be one component.

But I think in a just world there wouldn't be any need for immigration controls. There could be open borders, and it wouldn't be a big threat, because most people don't want to move. Europe has open borders within Europe, and there's a very low rate of movement. Very few European citizens live outside the state where they're citizens. Who wants to move to a place where they don't know anybody or can't speak the language? People in Greece or Spain might try to move now because things are so desperate, but normally people aren't going to move for just a minor advantage.

If the differences among world states were similar to differences within Europe — where the richest state is maybe twice as rich as the poorest rather than 10 or 15 or 20 times as rich — you could have a world where borders were open, because not that many people would leave their country of origin.

That'd be a huge increase in human freedom. We don't recognize ways in which state control over immigration is a restriction on human freedom. If you're going from L.A. to New York, all you need to do is get the money to pay for transportation. You have to obey the speed limit. But you don't need anybody's permission to make the trip. You don't have to contact any authority and explain why you want to do it. That's an important component of human freedom. Most people don't move from New York to L.A., but it's important to treat the right to do so as a basic right, as fundamental.

If you want to move to Toronto, however, the Canadian government might say no. Same thing if you want to move from Toronto to New York. We treat that sort of constraint as natural, but why is this freedom to move inside a country so important, a basic human right, but the right to move across the border is treated as entirely discretionary? I think it's related to inequality. The inequalities between states are so great that there'd be a very large movement of people if borders were open. We ought to use this question to think critically about the inequality that exists in the world. As we reduce inequality between states, we enhance human freedom.

What do you say to someone who agrees with all that, but says, "It's not my problem. It's a shame but it's not my job to fix it."

The presupposition of that view is that the existing order is somehow justifiable. Again, imagine how we'd respond to a noble in the Middle Ages who said,"Why are the peasants my responsibility? I didn't create the system."

We all are born into social situations, but then we need to ask ourselves whether that set of social situations is justifiable. We have to decide whether to keep things as they are or whether to try to change them. That's the challenge for someone who says “It’s not my problem.” You can't avoid supporting change or supporting the status quo.  We can see that about feudalism. It was bad for peasants and good for nobles. It wasn't fair. And a noble who said “I didn’t create the system” was ducking his responsibility.

Of course it's attractive to us in rich democratic states to keep what we have and not call into question the privileges and advantages we enjoy, but what justification can we offer to those in the poor states? Why do we think that this is a fair way to organize the world? It's not that things couldn't be worse. They could be. But things could be better. And we're helping to sustain the system in place now.

One of the main philosophers on the other side of this issue is David Miller. He argues that being part of a country gives us special obligations to our fellow countrymen that trump our duties to those in other countries. Do you agree with that? What does it imply about immigration?

I do think membership matters. We have obligations to people in our community that we don't owe to other people. There are cosmopolitans who think we owe the same things to everybody. That's not me.

But that doesn't mean that you're entitled to do whatever you want to others. I favor my own kids over other children, but if I'm an umpire for a Little League game they're in, I shouldn't favor my own kids' team. Of course you get to be more concerned about members of your community, but not in ways that are unfair. You can't favor your own by denying others their rights. The presupposition of the Miller argument is that the global system is not fundamentally unjust. David's a friend of mine, but I don't think he or anyone else has come up with an argument for why the global system we have now is fair to most people. I see why it's advantageous to people in Canada or the U.S., but not why it's fair to people in poor countries. We can still care about people in our own community more, but we can't do so in a way that disadvantages so many.

Michael Blake has a somewhat different argument, which is that when you're a state that's coercing people — making them pay taxes, throwing them in jail if they break the rules, etc. — there are limits to how it can use that power.

Michael's also a friend of mine, even though we have longstanding arguments. The problem here is two-fold. The first is that, if you're saying to potential immigrants, "You don't have special claims because you're not subject to coercion," then it's logical for the potential immigrant to reply, "Where do I sign? Why do these people get to be subjected to coercion and not me? Please subject me to coercion."

The second thing is that we are subjecting potential immigrants to coercion by excluding them, by using force to deny them entry. And the reply would be, "Oh, that's minor coercion, it's a one-time thing," but it's life-changing. That's a key exclusion that affects all other choices thereafter.

What Michael’s argument ignores is that there's a background coercive structure. The world is divided into states, and you have no claims against any state except the one you happened to be born into. What's fair about that?

It may be better than having a world government. That could be true. But why does it have to be this way, that there's no responsibility of one state to help people in another, when this is so bad for so many people, and good only for a relative few? That's what needs to be explained and justified.