The Volokh Conspiracy

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

Economist Tyler Cowen has an interesting New York Times column on the egalitarianism underpinning economic analysis and its implications for immigration policy:

Economic analysis is itself value-free, but in practice it encourages a cosmopolitan interest in natural equality.... The crucial implication is this: If you treat all individuals as fundamentally the same in your theoretical constructs, it would be odd to insist that the law should suddenly start treating them differently....

Often, economists spend their energies squabbling with one another, but arguably the more important contrast is between our broadly liberal economic worldview and the various alternatives — common around the globe — that postulate natural hierarchies of religion, ethnicity, caste and gender, often enforced by law and strict custom....
So where will a cosmopolitan perspective take us today?

One enormous issue is international migration. A distressingly large portion of the debate in many countries analyzes the effects of higher immigration on domestic citizens alone and seeks to restrict immigration to protect a national culture or existing economic interests. The obvious but too-often-underemphasized reality is that immigration is a significant gain for most people who move to a new country.

Michael Clemens, a senior fellow at the Center for Global Development in Washington, quantified these gains in a 2011 paper, “Economics and Emigration: Trillion-Dollar Bills on the Sidewalk?” He found that unrestricted immigration could create tens of trillions of dollars in economic value, as captured by the migrants themselves in the form of higher wages in their new countries and by those who hire the migrants or consume the products of their labor. For a profession concerned with precision, it is remarkable how infrequently we economists talk about those rather large numbers.

As Tyler argues, it is wrong to ignore the welfare of potential migrants when making immigration policy. I offer additional reasons why this is so and address some possible counterarguments here and here.

To say that immigrants’ rights and interests should not be ignored in debates over immigration policy is not to say that we should have completely free migration in all conceivable circumstances. There are potential situations where the harms caused by international migration are great enough to outweigh the benefits. But, as Tyler emphasizes, the truly enormous benefits are large enough that that harms sufficient to justify immigration restrictions must also be enormously large. Those benefits are not merely increased pay for migrants and increased productivity for the world economy, although both of the latter are potentially enormous. In many cases, allowing an immigrant to escape the Third World and enter a liberal democracy means saving him and his descendants from a lives of poverty and oppression. For many, particularly natives of nondemocratic nations, international migration is also their only means of exercising political freedom.

Moreover, some potential negative effects of immigration can be eliminated or minimized by measures less draconian than keeping would-be migrants out. For example, Tyler mentions the problems caused by immigrants who consume excessive welfare benefits. But that danger – where it exists – can be mitigated by denying welfare benefits to migrants, imposing additional taxes on them to pay for the public services they consume, or some combination of both. Similarly, there are many ways to control the potential “political externalities” immigration might cause. Tyler’s George Mason Economics Department colleague Bryan Caplan has an excellent article laying out many ways that possible negative side-effects of immigration can be alleviated without banning immigration itself.

Before they decide to keep out migrants, governments have a moral obligation to consider 1) whether the benefits of immigration – including those to immigrants themselves – are really outweighed by the harms, and 2) whether those harms can be mitigated by means other than denying migration rights. On rare occasions, the answers to both questions will indeed be “yes.” John McGinnis and I note one such possibility in this article (pp. 1792-93). But any fair-minded calculation of costs and benefits that takes migrants’ interests into account is likely to find that the vast majority of today’s migration restrictions can’t possibly be justified. That is likely to be true even if the analysis “discounts” their interests relative to those of natives by a substantial factor. The benefits of moving from the Third World to the First World are so enormous that they remain large even if you arbitrarily reduce them five or tenfold.

My father, Yefim Somin, recently participated in a panel on memoirs of immigration at Cary Memorial Libary in Lexington, MA. The video is available here.

As my father mentioned in the talk, his account of his immigration experience is available in this recent book of Russian Jewish immigrant memoirs published by the Hebrew Immigrant Aid Society. Other contributors include well-known novelist Gary Shteyngart and artist Marc Klionsky. I have an essay in in it as well. I blogged about an earlier version of it here.

The Open Borders blog – one of the best websites covering immigration issues – asked me to do a guest post on the implications of the Constitution to debates over immigration. The post is available here. Here is the intro:

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.

For readers who may be interested, my father, Yefim Somin, will be speaking on his experience of immigration from the Soviet Union to the United States at Cary Memorial Library in Lexington, MA on February 28 at 7 PM. His talk will be part of a panel on the experiences of immigrants who have settled in Lexington. The other speakers will be Brandeis Professor Mitra Shavarini (Iran), and Weidong Wang (China). The address and other details of this event are available here.

My father’s account of his immigration experience is available in this recent book of Russian Jewish immigrant memoirs published by the Hebrew Immigrant Aid Society, which you can purchase either online or at the Cary event itself. Other contributors to the volume include well-known novelist Gary Shteyngart and artist Marc Klionsky. I have an essay in volume as well, an earlier version of which I blogged about here.

Copies of Prof. Shavarini’s memoir will also be on sale at the Cary Library event.

In a recent post, co-blogger Eugene Volokh raises an important potential objection to unconstrained migration – the danger that immigrants with abhorrent values will become our “future rulers”:

The bottom line is that for all the good that immigration can do... unregulated immigration can dramatically change the nature of the target society. It makes a lot of sense for those who live there to think hard about how those changes can be managed, and in some situations to restrict the flow of immigrants — who, after all, will soon be entitled to affect their new countrymen’s rights and lives, through the vote if not through force.

I sometimes pose for my liberal friends a stylized thought experiment. Say that they live in a country of 3 million people (the size of New Zealand) where 55% of the citizens are pro-choice and 45% are pro-life (1.65 million vs. 1.35 million). Now the country is facing an influx of 1 million devoutly Catholic immigrants, who are 90% pro-life. If these immigrants are let in and become citizens, the balance will flip to 2.25 million pro-life to 1.75 million pro-choice (56% to 44% pro-choice); and what my friends might see as their fundamental human right to abortion may well vanish, perfectly peacefully and democratically.

This is an important point. And as I previously discussed in this article (pp. 1792-93), it can sometimes justify restrictions on migration. But the circumstances where it can do so are much narrower than Eugene implies. He underrates the extent to which such “political externalities” can be combated by means short of banning immigration, and is also too ready to subordinate the rights and interests of potential migrants to those of current residents.

I. Alternative Mechanisms for Reducing Political Externalities.

There are many ways to reduce potential negative political effects of migration short of banning immigration itself. The most obvious is to deny the immigrants in question the right to vote. Both the United States and most other nations already impose waiting periods before new immigrants become eligible for citizenship (currently five years in the case of the US). If necessary, the five year period could be extended to ten years, fifteen, or even longer. We could even grant permanent residency rights to people who are ineligible to vote for life. Living in a country for many years without the right to vote may seem like an injustice. But living that way in a relatively free and prosperous society is still far better than living in a poor and oppressive Third World country – in many of which the citizens also lack any effective political influence.

Waiting periods for citizenship both eliminate the possibility of immediate political change and give time for the immigrants to become more assimilated and embrace more of their new country’s values. It’s true, as Eugene notes, that such assimilation isn’t always completely effective. But history shows that it does have a profound impact over time. Consider the differences between the views of current Americans – including even relatively recent immigrants – and those prevalent in the countries where they or their ancestors came from. In this context, it’s worth remembering that most immigrants are people who left their home countries at least in part because they were dissatisfied with its political and economic system and believe that life in the new country will be better. That makes them more open to accepting the new country’s values than the average foreigner would be. And, obviously, immigrants are self-selected for willingness to adjust to life in a new society with a different culture from the one they grew up in.

Even when immigrants do get the right to vote quickly and do not assimilate, they usually vote at rates much lower than natives and exercise far less in the way of political influence beyond the ballot (e.g. – by holding public office, making campaign contributions, and so on). That limits their ability to force any major policy changes.

Constitutional restrictions on government power can also help prevent negative political externalities. It’s true, as Eugene says, that constitutions can be changed. But they are harder to change than ordinary laws and require a bigger supermajority to do so.

All of the above assumes that the immigrants would change the political system for the worse. But, obviously, they could just as easily have a beneficial impact. Precisely because of their painful experience in less free or less prosperous societies, immigrants will sometimes have a better understanding of what makes their new country successful than many natives do. This isn’t always true, of course. But the possibility that immigrants might actually improve the political system needs to be carefully considered and weighed against the danger that they might have a negative impact.

II. Immigrants’ Rights and Interests Count Too.

In some cases, of course, negative political externalities caused by immigration cannot be completely eliminated. But Eugene and many others err in assuming that, in such scenarios, the natives are justified in blocking immigration without considering the welfare of the potential migrants.

Consider Eugene’s example of a situation where migration of pro-life immigrants will lead to a ban on abortion, and the only way to prevent that result is to keep them out. Now assume, for the sake of argument, that the migrants are fleeing a mass-murdering dictator who will kill them unless they are allowed to settle in the democratic nation. Even a strongly pro-choice person would have to admit that, in this case, saving thousands of innocent people from murder must take precedence over protecting the right to abortion. Thus, even when political externalities are a genuine danger, it is unjust to make immigration policy on the assumption that we can just give zero weight to the interests of the potential migrants.

Now consider the more typical case where keeping out potential migrants does not consign them to certain death, but “merely” to a life of poverty and oppression in the Third World. It is unjust to force that on them merely to protect relatively minor interests of natives, such as marginal deterioration in the quality of their government policies. Even if you conclude that natives have the right to value the interests of each one of them as, say, five or ten times more important than those of potential migrants, the difference between living in a Third World nation and First World one is so great that it would take very large political externalities to outweigh the benefits of immigration. If you choose a tradeoff ratio far higher than five or ten, then you are back to the situation where you would be willing to consign potential migrants to mass murder in order to protect minor benefits for natives. The person who holds such a view is similar to those who refused entry to Jews fleeing Nazi Germany in the 1930s.

Some will object to this argument on the grounds that Westerners are not responsible for the poor conditions under which many Third World people live. But as philosopher Michael Huemer shows, immigration restrictions don’t merely leave in place poor conditions created by others. They involve the active use of force to prevent people from bettering their condition through voluntary transactions with Westerners who are willing to hire them, rent housing to them, and so on. The US government in the 1930s was not responsible for the oppression of Jews in Nazi Germany. But it did deserve moral blame for using the threat of force to deny many of them an opportunity to escape that oppression by coming to this country.

None of the above proves that the danger of political externalities never justifies keeping out immigrants. To the contrary, I think there are extreme cases where it does. But before imposing such restrictions, natives have an obligation to seriously consider whether the externalities can be prevented or reduced by less repressive measures, such as delaying the grant of citizenship and constitutional constraints on government power. And in weighing costs against benefits, they cannot completely ignore the interests of the potential migrants themselves.

UPDATE: For those interested, the Open Borders blog has a good site devoted to the issue of the political externalities of immigration.

UPDATE #2: Tom Smith of the Right Coast responds to this post here:

Suppose one considers oneself a libertarian; it doesn’t matter whether you are soft or hard. Any sort of libertarian will do. Then you are asked whether you want to give somebody from outside your political body the power, via the vote, to make decisions that will apply to you, and that person does not share your attitude toward your rights. Indeed, he thinks there’s nothing wrong with a big state, lots of welfare benefits, and so on. I would think it would be an easy question to answer — the libertarian would say, uh, no thanks; you should go to a country more in line with your political beliefs....

So a libertarian would think everybody has the right to go wherever they want and be a citizen, but not think they should be able to exercise their rights, or rather they would not have those rights, once they got there....

I am all for immigration, so long as the people who come here share my political beliefs. Some will, but most will not.

I think this misses part of the point of my post. There is a difference between letting people go wherever they want and giving them citizenship and voting rights. The former doesn’t require the latter, especially not immediately. And there are other ways of reducing political externalities as well. Moreover, even when immigrants don’t share your political views, the relevant question is not whether they agree with you completely, but whether they, on average, disagree more than the present population of voters do. If the immigrants have roughly the same distribution of views as natives, then you are no worse off than before. If they are more libertarian than the present median voter but still less libertarian than I am, their arrival will still move the political system in what I would regard as a positive direction. Finally, whatever negative political effects immigrant voters might create have to be weighed against the nonpolitical benefits of migration to both natives and immigrants themselves.

Two questions I thought I’d ask readers:

(1) How many people in the world do you think would like to move to the U.S. over the next, say, 30 years, if it were legal for them to move here and work here?

Assume that in that time the U.S. will sometimes be booming and sometimes in economic trouble; many other countries will be, too; but many countries will be chronic economic disaster areas, and some others will have longish economic troughs, largely as a result of political problems. Likewise, many countries will be chronic political disaster areas, and some others will have longish political troughs. And of course there will be periodic wars, civil or transnational.

(2) Given your answer to question one, what would be the best American immigration policy, either from (a) a moral perspective (if that is your approach) or from (b) a perspective of what’s best for the current residents of the U.S. and their descendants?

(3) Please indicate whether you are giving a category (a) answer or a category (b) answer, and why you think that’s the right category of answer to give. [UPDATE: Of course, if your answer is a mix of category (a) and (b), that's just fine, but please explain your thinking on that as well.]

Here’s my tentative thinking: I think the answer to question 1 is “a vast amount,” quite likely an amount comparable to the current population of the U.S. Given this, I am skeptical that open immigration is a good category (b) answer, which is the category of answer I’m inclined to look for. (I see the moral case for taking a category (a) approach, though I’m not persuaded by it.)

I think that the U.S. should be looking to substantially expand its population, for reasons I discussed in this September 2011 post. But I suspect that a take-all-comers approach will not be optimal, however well it worked for the U.S. given the economic, political, transportation, and family growth environment of the 1700s and 1800s.

At the same time, my thinking really is very tentative on this. I know how little I know about this subject, and I suspect the questions are hard even for people who know a lot more than I do.

The one thing I think I do know is that the answer to question (2) should be influenced by what we think is the answer to question (1).

The Daily Caller posts about a U.S. Department of Agriculture “Cultural Sensitivity Training” that, among other things, says the Pilgrims were “illegal aliens.” (Thanks to InstaPundit for the pointer.) It reminds me of a Conrad editorial cartoon from the L.A. Times that I blogged about ten years ago: An American Indian is carrying a sign that says “Deport Illegal Immigrants.” Both, I assume, are meant to suggest that it’s hypocritical for white Americans to oppose illegal immigration since America was taken from the Indians (whether or not this would have been strictly “illegal” from the Indians’ perspective at the time).

I think, though, that the “Pilgrims = Illegal Aliens” equation illustrates the exact opposite. The whites immigrated to America — and took over the place. (I’m glad they did, but I can surely understand why the Indians might have disagreed.) Likewise, Jews immigrated to Palestine (adding vastly to the numbers already present), sometimes illegally — and eventually there were more Jews in some parts than Arabs, so Jews started running the place. Now Israelis are sensibly objecting to Palestinians’ asserted “right of return” to their and their parents’ homes, because if enough Palestinians are allowed to immigrate into Israel, they’ll start running the place.

The bottom line is that for all the good that immigration can do (and I’m an immigrant to the U.S., who is very glad that America let me in, and who generally supports immigration), unregulated immigration can dramatically change the nature of the target society. It makes a lot of sense for those who live there to think hard about how those changes can be managed, and in some situations to restrict the flow of immigrants — who, after all, will soon be entitled to affect their new countrymen’s rights and lives, through the vote if not through force.

I sometimes pose for my liberal friends a stylized thought experiment. Say that they live in a country of 3 million people (the size of New Zealand) where 55% of the citizens are pro-choice and 45% are pro-life (1.65 million vs. 1.35 million). Now the country is facing an influx of 1 million devoutly Catholic immigrants, who are 90% pro-life. If these immigrants are let in and become citizens, the balance will flip to 2.25 million pro-life to 1.75 million pro-choice (56% to 44% pro-choice); and what my friends might see as their fundamental human right to abortion may well vanish, perfectly peacefully and democratically.

It’s unlikely that any constitutional protection will stand in the way: Even constitutions can be amended, and new judges can be appointed. Nor can one rely on “education” or “assimilation” — what if the immigrants simply conclude that their views on abortion are just better than the domestic majority’s? I think many of the current residents may rightly say “We have nothing against Catholics; but we don’t want our rights changed by the arrival of people who have a different perspective on the world than we do.”

Letting in immigrants means letting in your future rulers. It may be selfish to worry about that, but it’s foolish not to. For America today, that’s actually not that much of a concern, because we’re a huge nation whose culture is already so mixed (for which I’m grateful) that even millions of immigrants won’t affect it all that greatly, at least for quite a while. But for many smaller and more homogeneous countries, extra immigration means a fundamental change in what the country is all about, and perhaps what the citizens’ lives and liberties will be like. And even for America, the influx of millions of new citizens — both the potentially legalized current illegal immigrants and the many others who are likely to come in the wake of the legalization — can affect the society and the political system in considerable ways. It seems to me eminently sensible to be concerned about the illegal immigrants who may well change (in some measure) your country even if your ancestors were themselves illegal immigrants who changed the country as it once was.

It was interesting to see that both Marco Rubio in his official Republican response to President Obama’s State of the Union and libertarian-leaning Senator Rand Paul in the Tea Party response argued for a less restrictive immigration policy. This is an important development for a party whose conservative wing has long been known for its support of restrictionism.

Rubio restated his longstanding support for expanding legal immigration and at least some regularization of the status of the illegal immigrants already here. The notable development here is not that he said it, but that it was embodied in the GOP’s official response to the President.

Paul actually went further than Rubio, advocating a much broader pro-immigrant stance:

We are the party that embraces hard work and ingenuity, therefore we must be the party that embraces the immigrant who wants to come to America for a better future.

We must be the party who sees immigrants as assets, not liabilities.

We must be the party that says, “If you want to work, if you want to become an American, we welcome you.”

Taken literally, this suggests a policy of open borders for anyone who “want[s] to work” and “become an American.” Most likely, Paul did not intend to go that far. But it’s still a pretty strong statement, reminiscent of Ronald Reagan’s 1989 farewell address, where he called for an America “open to anyone with the will and the heart to get here.” And unlike both Rubio and President Obama in the State of the Union, Paul did not couple this call for increased immigration with a call for increased border enforcement.

It is significant that this sentiment was included in a speech billed as the official Tea Party response to the State of the Union. Although the Tea Party is often portrayed as a group of extreme social conservatives, it also has a large libertarian wing that includes about half of its supporters. Paul’s speech is an important sign that the libertarian wing of the Tea Party is gaining ground, at least on immigration. I discussed the distribution of Tea Party opinion in more detail in this article.

It is also noteworthy that both Rubio and Paul linked support for immigration with a more general pro-free market and pro-individual freedom stance. I elaborated on that idea in more detail here. Free migration is also an important element of political freedom.

Obviously, the immigration sections of Paul’s and Rubio’s speeches are very general. It remains to be seen whether and to what extent the GOP and the Tea Party movement will translate them into policy specifics. Moreover, the Republican Party still clearly contains a large restrictionist wing, some parts of which verge into nativism. They are not simply going to give up as a result of these two speeches.

The speeches also did not address standard conservative objections to immigration, such as the claim that it will lead to massive increases in welfare spending, which I challenged here. Like most political speeches, Rubio’s and Paul’s have little in the way of in-depth reasoning.

Despite these caveats, it is clear that the winds of change are blowing in the GOP on this issue, probably for a combination of both political and principled reasons. Combined with President Obama’s own apparent commitment to immigration reform, which he reiterated in the State of the Union, it’s even possible we will get some change we can believe in.

UPDATE: It’s worth noting that Rand Paul’s Senate website is much less pro-immigration. The page devoted to the issue mostly focuses on the supposed need to prevent illegal immigration, while only briefly mentioning his “support [for] legal immigration.” It’s theoretically possible to reconcile the website and the speech by noting that a policy that makes immigration legal for all those who “want to work” and become Americans would largely eliminate the issue of illegal immigration, because the vast majority of potential immigrants could then just get in legally. It’s more likely, however, that the speech represents either a change of position or at least a major change of emphasis. If immigrants really are “assets, not liabilities,” it makes no sense to make a big point of “securing the border” against them, as Paul does on the Senate website.

In my post comparing Romney and Obama on libertarian grounds, I noted that libertarians might have good reason to support Obama if it is likely that a second term for him would result in substantial immigration reform, by which I mean letting more immigrants in the country and/or letting more of the ones already here stay. For reasons I explained here, immigration reform is an extremely important libertarian issue. Unfortunately, I saw no reason to believe that Obama would give this issue any more priority than he did in his first term, where he accomplished very little when he had a massive Democratic majority in Congress in 2009-10, and actually ramped up deportations beyond anything seen under George W. Bush.

Since I wrote my previous post, however, the White House has allowed the publication of an off-the-record interview where the president predicts that he will get an immigration reform bill passed if he wins a second term:

In the interview, Obama said he is confident his administration will pass immigration reform and achieve the equivalent of a grand bargain with Congress.

After failing to achieve comprehensive immigration reform in his first term, the president said Republicans, given the large Latino vote, will be invested in changing the system.

“I’m confident we’ll get done next year is immigration reform,” Obama said in the transcript of the interview posted online by the paper. “And since this is off the record, I will just be very blunt. Should I win a second term, a big reason I will win a second term is because the Republican nominee and the Republican Party have so alienated the fastest-growing demographic group in the country, the Latino community.”

“So I am fairly confident that they’re going to have a deep interest in getting that done,” he added.

This raises two important questions: Does Obama mean what he says, and is his political analysis correct? On the first point, it’s difficult to say. It’s not clear why Obama would not sacrifice immigration reform to other priorities in his second term, just as he did in his first. During the first term, after all, Obama needed to mobilize Latino voters to support his reelection. Yet he still didn’t prioritize immigration reform and still increased deportations. In a second term, that reelection incentive will be gone, though perhaps Obama will be motivated by a desire to help future Democratic candidates. On balance, I’m not sure whether I should believe Obama on this point or not.

Let’s assume, however, that the president means what he says, and that he really will make the issue a priority. Is he right that the GOP will cooperate with him out of a desire to attract Latino voters? Any immigration reform bill would have to get through a Republican-controlled House and a closely divided Senate. Obama can’t pass an immigration reform bill without substantial Republican support. Some prominent Republicans have indeed been saying that the party needs to change its stance on immigration in order to improve its electoral prospects. But that doesn’t necessarily mean they would pass an immigration reform bill at a time when a Democratic president and Senate could claim the lion’s share of the credit for it. That could help the Democrats with Latinos much more than the GOP.

And if the GOP really does believe they need to shift on immigration in order to increase their appeal to Latinos, why wouldn’t they be equally eager pass an immigration reform bill if Romney wins? Any Romney victory is likely to be a squeaker. Republican strategists will realize that he came very close to losing despite a relatively weak economy, and an incumbent with lots of chinks in his political armor. So Romney would be looking to increase his electoral appeal for 2016, as will a congressional GOP that would at most have very narrow majorities in both houses. A narrow Romney victory won’t necessarily lead the GOP to be any less eager to attract Latino voters than a narrow Obama victory. Obviously, there won’t be any immigration reform bill if Romney wins by a large margin and the GOP gets comfortable majorities in both houses. But that seems extremely unlikely to happen.

Obama assumes that a chastened GOP will be more willing to pass an immigration reform bill if Romney loses. Maybe. But the opposite scenario is at least equally plausible. A narrowly victorious Romney plotting his reelection strategy might be eager to court Latinos. That may be why he has attacked Obama for failing to pass immigration reform when he had the chance, and promised to “get it done” during his own first year. Romney has a long history of politically convenient flip-flops. So I wouldn’t put any great stock in this promise. But if Obama’s evaluation of the GOP’s political situation is correct, Romney might yet deliver on the promise – if not out of principle than out of political calculation.

If Romney tries to push an immigration reform bill through, Democrats might refuse to cooperate with him, just as Republicans might refuse to cooperate with Obama. But such refusal may be tougher for the Democrats to bring off because more of the Democratic base has a strong commitment to liberalizing immigration than the Republican base.

So if Obama is right about the GOP’s need to court Latinos, they may be as much or more likely to pass immigration reform under Romney. If he is wrong, then we may not get immigration reform regardless of who wins. If it’s Obama, a GOP that doesn’t sense any need to attract Latinos would simply refuse to support any Democratic reform bill.

On balance, therefore, a major immigration reform bill is at least equally likely under Romney as under Obama. Both candidates have promised to do it in their first year. It’s hard to tell which is more likely to keep the promise and successfully push a reform bill through Congress.

Time has an interesting article describing how state laws intended to crack down on illegal immigrants have led to a crisis in agriculture. Unable to use immigrant labor to harvest it, many farmers have had to let much of their crop go to waste:

Ralph and Cheryl Broetje rely on roughly 1,000 seasonal workers every year to grow and pack over 6 million boxes of apples on their farm along the Snake River in eastern Washington. It’s a custom they’ve maintained for over two decades. Recently, though, their efforts to recruit skilled labor, mostly undocumented immigrants, have come woefully short, despite intensive recruitment efforts in an area with high rates of unemployment.

The Broetjes, and an increasing number of farmers across the country, say that a complex web of local and state anti-immigration laws account for acute labor shortages. With the harvest season in full bloom, stringent immigration laws have forced waves of undocumented immigrants to flee certain states for more hospitable areas. In their wake, thousands of acres of crops have been left to rot in the fields, as farmers have struggled to compensate for labor shortages with domestic help.

“The enforcement of immigration policy has devastated the skilled labor source that we’ve depended on for 20 or 30 years,” said Ralph Broetje during a recent teleconference organized by the National Immigration Forum, adding that last year Washington farmers—part of an $8 billion agricultural industry—were forced to leave 10% of their crops rotting on vines and trees. “It’s getting worse each year,” says Broetje, “and it’s going to end up putting some growers out of business if Congress doesn’t step up and do immigration reform.”

Roughly 70% of the 1.2 million people employed by the agricultural industry are undocumented. No American industry is more dependent on undocumented immigrants. But acute labor shortages brought on by anti-immigration measures threaten to heap record losses on an industry reemerging from years of stiff foreign competition. Nationwide, labor shortages will result in losses of up to $9 billion, according to the Farm Bureau Federation.

The article focuses mostly on the negative impact of immigration restrictions on farmers. But it’s also important to recognize the negative effects on consumers. If much of this year’s crop is left unharvested, the price of food will go up, thereby harming consumers as well as farmers. The poor are likely to suffer more than others, especially in a bad economy when many already find it difficult to make ends meet.

The Time article notes that some states are seeking to enact guest-worker programs to prevent laborers from fleeing to more hospitable jurisdictions. In this way, interjurisdictional competition between states can mitigate the effects of anti-immigrant sentiment. For the moment, however, farmers and consumers have joined immigrants themselves on the list of victims of the states’ immigration crackdown.

UPDATE: Ted Frank responds to this post here:

“[A]s any economist can tell you, there’s no such thing as a ‘shortage,’ only an unwillingness of purchasers to pay a market price that may have previously been artificially depressed.” Ilya Somin is more economically savvy than most law professors, but buys into the idea of a shortage of farm-workers, because there are “crops rotting in the fields.” But as Steve Sailer notes, a profit-maximizing farmer will always have “crops rotting in the fields”; there’s always going to be last dregs of produce that are economically infeasible to harvest.

Actually, most economists recognize that shortages can and do arise when government intervention prevents supply from meeting demand. In this case, the government is preventing illegal immigrants from supplying their labor at market-clearing prices, thereby causing shortages. The effects are similar to those of price controls that led to oil shortages in the late 1970s. Just as price controls artificially repress the supply of goods, thereby causing shortages of the products in question, immigration restrictions artificially suppress the supply of labor, thereby creating labor shortages.

It is true that some crops are likely to be left to rot regardless. But as the article I quoted above notes, this year it is far more than normal, and the immigration crackdown is one of the causes. Ted also notes that the price of labor has been going down in recent years, as one would expect during a recession. But that is still compatible with labor shortages if the supply of labor is artificially repressed. Absent the immigration crackdown, the supply would be higher and the price lower than otherwise.

The health care cases were not issued today. They are expected on Thursday. But there are plenty of other significant opinions. Two that are of particular interest to me are America Tradition, Inc. v. Bullock, the Montana campaign finance case, and Arizona v. United States, the Arizona immigration case.

The Montana decision is a per curiam opinion summarily reversing the Montana Supreme Court’s decision upholding a state law restricting campaign-related speech by corporations. I think the 5-4 majority opinion is pretty obviously correct in holding that this law is inconsistent with the Court’s 2010 decision in Citizens United:

A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party....” The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment.... In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation....” The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

In dissent, the four liberal justices argue that Citizens United should be overruled.

In the Arizona decision, a 5-3 majority, with Chief Justice John Roberts and Justice Anthony Kennedy joining three liberal justices (Justice Kagan was recused), ruled that three out of the four challenged provisions of the Arizona immigration law are preempted by federal law. The fourth – the controversial provision requiring state police to check the immigration status of some people arrested for other reasons – is remanded to state courts so that they can construe the state law in order to determine more fully whether it conflicts with federal law. I am no fan of the Arizona law. But I don’t know enough about the relevant federal immigration law to have any strong opinion on whether today’s decision is correct.

UPDATE: In the original version of this post, I accidentally got the lineup of justices in the Arizona case wrong. I noticed the error almost immediately, but was unable to correct it for some time due to technical problems with the VC website. I have now fixed the mistake, and apologize for the annoyance.

UPDATE #2: It is perhaps worth noting that, in the immigration case, Justice Alito agree with the majority on one of the three provisions of the Arizona law that they ruled were preempted.

Charles Krauthammer has a column today taking President Obama to task for his recent decision to “lift the shadow of deportation” from otherwise law-abiding undocumented aliens who came to the U.S. as children and allow them to “request temporary relief from deportations and apply for work authorization.”  (For DHS’s page on the program, see here.)  He argues that it’s impermissible to exercise discretion categorically:  rather, he says it requires review on a “case-by-case basis on considerations of extreme and extenuating circumstances.” I’m a big fan of the good doctor, but I’m not so sure he’s right about whether the exercise of discretion has to be individualized, at least not as a general matter. I think it requires a closer look at the specific statutes at issue.

It’s a background principle of administrative law that, “[a]bsent statutory language to the contrary, agencies are free to decide whether to implement a grant of discretion by means of rules, which provide prospective standards of behavior, or by means of case-by-case decisionmaking (or adjudication).” Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion, 7 Op. OLC 39, 44 (1983) (AAG Ted Olson); cf. NAACP v. Fed. Power Comm’n, 425 U.S. 662, 668 (1976) (“As a general proposition it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures.”). So the question then becomes whether the specific provisions of the immigration laws allow the Secretary of Homeland Security to exercise her discretion by rule in this manner.

I’d love to take a more careful look at the immigration laws and determine for myself whether I think they authorize the President’s action, but (1) I have actual paying clients to tend to, and (2) it’s well known that prolonged exposure to the hyper-reticulated Immigration and Nationality Act can actually cause your brain to melt.  Here’s what I do know:

Continue reading ‘President Obama’s Deferred Action on Immigration (and OLC)’ »

Last week, President Obama issued new guidelines allowing immigrants who illegally entered the United States as children to remain here so long as they are under the age of 30, have not been convicted of any crimes, and have either graduated from a US high school, are currently enrolled in school, or have served in the military. Obama lacks the legal authority to legalize their presence in the US; but he has in effect assured these people that they will not be prosecuted or deported for so long as his new policy remains in place.

This reform strikes me as a major step in the right direction. It allows some 800,000 people to live their lives in peace without the fear of being deported to a life of poverty and oppression in the Third World. It strikes a blow against the grave injustice of current immigration restrictions. All the standard objections to illegal immigration don’t apply here. For example, critics cannot argue that we are letting guilty people off the hook here, since these individuals came to the US as children and were not legally responsible for their actions at the time. Similarly, it is unlikely that these people will become burdens on the welfare state, given their educational credentials. In any event, increased immigration tends to reduce political support for welfare spending rather than raise it.

I do disagree with claims that this decision by Obama is especially bold or politically brave. Polls show that 84% of Americans – including even 79% of Republicans – believe that illegal immigrants who were brought to the United States as children and are either enrolled in college or serving in the military should be allowed to remain (49% believe they should be granted citizenship). Obama’s policy differs from the one described in the poll, but only modestly. The small minority who oppose this move are unlikely to vote for Obama anyway. But regardless of his motives, Obama made the right decision. This policy ranks high on the list of issues where Obama and I agree.

Some critics, such as John Yoo and Arnold Kling, attack the president’s decision not on the merits, but on the grounds that he lacks legal authority to choose not to enforce the law in this case.

This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States all have reason to be grateful for this restraint.

Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Finally, Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

UPDATE: A more recent poll shows that 64% of likely voters support the president’s policy.

UPDATE #2: At the Originalism blog, Michael Ramsey comments on this post as follows:

These are all fair points, though I’m left with two questions:

(1) Where would Professor Somin draw the line between permissible non-enforcement and violation of the take care clause? Could the President, if unable to persuade Congress to enact a middle-class tax cut, announce that henceforth people making below a specified income level will not be punished for failing to pay taxes? I’d be surprised if many people think he could do that, but I’m having some trouble seeing how the present policy is different.

(2) Is it true that all of the President’s policy can be explained simply as a decision not to enforce the law? Professor Somin assumes so, but my limited understanding was that the policy conveys affirmative benefits.

On Ramsey’s first question, I would say that the president could indeed choose not to prosecute people making below a specified income for tax evasion. I think that is an inevitable result of a system of separation of powers where prosecutorial discretion is lodged in an executive separate from the legislature. The constraint on this kind of abuse of power is primarily political. A president who takes discretion too far risks a backlash by Congress and the public. Notice that the same scenario could arise from the use of the president’s pardon power. The president could announce that he will pardon anyone who is convicted of tax evasion if their annual income is below a certain level. No one doubts that the Constitution gives him such authority, and that the relevant constraint on it is mostly political. In reality, president’s are unlikely to massively abuse prosecutorial discretion for much the same reason as they are unlikely to pardon anyone who violates a federal law they disagree with.

Regarding the second question, I am not aware of any “affirmative benefits” attached to Obama’s decision, other than those that are inevitably attached to being able to remain in the US. If there are such benefits, they may indeed raise legal issues that go beyond the issue of prosecutorial discretion.

UPDATE #3: Ramsey responds further in an update to his post:

Wow, so the President can lower everyone’s tax rates by executive order? Why then did President Bush work so hard in 2001 to encourage Congress to enact the “Bush tax cuts” when he could have just announced that anyone who paid at the rate he specified wouldn’t be prosecuted? Relatedly, does that mean the President can in effect adopt a (temporary) flat tax by saying that anyone who pays, say, 10% of income in taxes doesn’t need to worry about enforcement?

More seriously, it seems to me that we face here two conflicting constitutional rules: the President’s Article II, Section 3, obligation to take care that the laws are faithfully executed and the President’s Article II, Section 1, executive power to decide how to enforce the law. The challenge is to explain how they interact. Professor Somin’s response seems instead simply to ignore one of them. In posing my hypothetical, I was trying to draw out his explanation of the take care clause. But perhaps he thinks that the President does not have an obligation to enforce the laws. I’m not sure how that could be reconciled with the Constitution’s text, but I’m also not sure what other conclusion to draw from his response.

On Ramsey’s first point, I would say that the reason why Bush worked to get Congress to pass his tax cuts is that, otherwise, any executive decision not to prosecute people could be overruled by the next president. Taxpayers would have no guarantee that the new Bush rates would not be suddenly changed by the president. Also, such a decision would have resulted in severe political damage to his administration. One can just as readily ask why Bush didn’t announce that he would pardon anyone convicted of failing to pay taxes above the rate Bush considered appropriate.

As for the Take Care Clause, I don’t think it requires the president to enforce every law to the hilt. If it did, every single president in our history would have been in violation. In my view, what the Clause means is that the president (as opposed to Congress or the courts) is the official tasked with enforcing the laws and that he must make a good faith effort to decide on the best law enforcement strategy he can, given all relevant circumstances. That is not a perfect interpretation, but I think it’s preferable to the available alternatives.

In this recent CNN column, Philippe Legrain explains the injustice of many current immigration restrictions:

It is no longer acceptable to discriminate against people on the basis of a whole range of characteristics that they happen to be born with, notably their gender, their race and their sexuality. So why is it still deemed acceptable to discriminate against people on the basis of where they happen to have been born?

The world is anything but flat: the biggest determinant of your life chances is not how talented you are or how hard you work, it is where you were born and who your parents are. Anyone lucky enough to have been born in the United States who doubts this should try to imagine how different their life would have been if they had been born in Africa.

A hard-working entrepreneur born in a remote African village has far fewer opportunities to achieve his dreams than a lazy dimwit born in America. Even if the African seizes all her chances and the American none, the American is still likely to enjoy a more comfortable life. And the surest thing that African could do to transform her (and her family’s) life chances is to go and work in the U.S.

But only if governments allow her to. Unfortunately, we live in a system of global apartheid, where the rich and the educated can move about increasingly freely, while the poor are expected to stay put, like serfs tied to the land where they were born.

For the most part, people are oblivious to the injustice of this: it is seen as part of the natural order of things, like slavery once was. But insofar as people try to justify this unnatural and unjust state of affairs, they claim immigration controls are necessary to protect people in rich countries from their poorer brethren. Yet if one thinks a bit more carefully, one realizes that these objections don’t stand up.

It’s worth noting that most of the standard objections to free international migration could also justify restrictions on internal migration within the United States and other Western nations. Consider migration to my home state of Virginia from neighboring West Virginia (which is much poorer). West Virginia migrants could take way jobs from Virginians, and put pressure on Virginia’s welfare system and other public services. They might increase our crime rate (West Virginia has a higher crime rate than Virginia). And they (combined with migrants from other poor states) could potentially change the local culture in ways that long-established residents might not like. Indeed, the culture of northern Virginia – where I live – has already been radically transformed by “carpetbagger” migrants from the north over the last thirty years – perhaps to the chagrin of more traditional southerners in the area. Yet no one seriously argues that Virginia should have the right to restrict migration from West Virginia or from the north. Even if the effects of internal migration on Virginia were larger than they are, it’s still unlikely that anyone would seriously advocate migration restrictions as a solution. Relatively few did so when many northern cities were enormously transformed by the migration of southern African-Americans in the mid-twentieth century. This double standard reinforces Legrain’s point that much of the support for immigration restrictions is the result of anti-foreign prejudice.

One might object to Legrain’s argument on the grounds that Westerners are not responsible for the poor conditions under which many Third World people live. However, as philosopher Michael Huemer shows, immigration restrictions don’t merely leave in place poor conditions created by others. They involve the active use of force to prevent people from bettering their condition through voluntary transactions.

I don’t think the above proves that immigration restrictions are never justified. If free migration poses a grave danger to natives sufficient to justify severe restrictions on liberty, and the danger could not be alleviated by less repressive measures, then we would likely be justified in excluding people who posed such a risk; for example if that were the only way to stop the spread of a deadly contagious disease. In such cases, restrictions on internal migration might be defensible as well.

Conservative and libertarian critics of immigration argue that the potential increase in the size of the welfare state arising from immigration, poses just such a threat. In this post, I explained why such claims are overblown; freer migration could well actually lead to reductions in the welfare state rather than increases. And, as with many other supposed dangers of immigration, this problem (if it does exist) could be addressed by less harsh measures than immigration restrictions, such as requiring immigrants to pay additional taxes to offset the fiscal burdens they might impose on natives.

Finally, it’s worth noting that today’s extensive immigration restrictions are actually an aberration in modern history. In the 18th and 19th centuries, both the US and many European nations allowed almost completely free migration, with results that were highly beneficial for both immigrants and natives. Migration into the United States remained mostly unfettered until the 1920s.

My point (and probably Legrain’s) is not that immigration restrictions are always unjustified. It is that they inflict severe harm on innocent people, and therefore require a heavy burden of justification. Some goods may be important enough to justify the use of force to consign would-be migrants to a life of poverty and oppression through no fault of their own. But surely not many.

UPDATE: I should note that some defend migration restrictions by comparing nation-states to private clubs that have the right to exclude members for whatever reasons they wish. There are many flaws in this club analogy. Michael Huemer’s article, linked above, describes them in detail. I summarized some of these weaknesses in my contribution to the 2010 International Affairs Forum on migration (pg. 42):

Many critics of immigration analogize... the United States, for example, to a private “club” that has the right to keep out unwanted entrants. However, there are crucial differences between a government and a private club. The latter includes only members who join voluntarily and agree to follow all of the club’s rules. If members wish to leave the club, they can generally do so while retaining all of their property and other rights. By contrast, most people do not choose to accept the domination of the government they live under; they are instead born into it. Even in a relatively free society that allows emigration, it is difficult for citizens to fully escape the rule of their government. Emigration is costly, and does not enable the migrant to take all of their property (especially land) with them. Democratic governments are more consensual than authoritarian states, but not nearly as much so as the private club analogy implies.