Limiting Who Enters Is a Legitimate Function of the Sovereign State
Jonathan H. Adler
Many people are understandably objecting to the Trump administration's immigration policies. Enforcement of the law has been intrusive, arbitrary, and callous. The economic case for a more liberal immigration regime is strong and more generous policies could benefit U.S. citizens and immigrants alike.
But some go further than that, suggesting that the only immigration policy consistent with individual freedom is one of open borders. These people, who often identify as libertarians, even believe that it is inherently illegitimate for the government of a free society to impose any limit on immigration.
This is an error.
Like any other government power, limits on migration may be misused or abused. But just because specific immigration policies are unwise does not mean that the entire enterprise of policing borders is illegitimate.
It has long been understood that a fundamental aspect of national sovereignty is control over a nation's territory, including control over the border. To say that a nation is sovereign is to say that the government is responsible for the territory over which it exercises its sovereignty. This means it has valid authority to exclude outsiders.
As Emer de Vattel, one of the most important natural law theorists of the 18th century and a profound influence on America's founders, explained in The Law of Nations, "the sovereign may forbid the entrance of his territory to foreigners in general, or in particular cases, or to certain person, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the right of domain and sovereignty." Among other reasons for this, once the sovereign admits foreigners into its territory, "he engages to protect them as his own subjects, and to afford them perfect security."
State sovereignty in relation to outsiders may be analogized to property ownership. Most libertarians readily accept that it is reasonable and legitimate for people to deny or limit use of their stuff. This is true whether that stuff is owned individually or collectively. Condominiums, cooperatives, corporations, and the like are forms of collective ownership through which the owners authorize managers to, among other things, constrain the use of the collectively owned property. Accordingly, my homeowners association can prevent nonresidents from using our ponds and traversing our conservation lands, just as it may impose limits upon how association members make use of these common resources.
Like it or not, much of the land, air, and water in this country is collectively owned. These areas are vast, politically managed commons. The use and depletion of our common resources can harm—and, indeed, violate the rights of—individuals within the broader community. Because the resources and spaces are common, none of us may exercise self-help the way we might with our own property. Instead, we are forced to rely upon the collective management that is provided by the state. Not only is power over the border an inherent aspect of national sovereignty, control of access to common resources necessarily requires controlling entry, and that will sometimes justify placing limits on immigration.
Many things done by the state to manage and protect common resources and spaces are unwise, foolish, counterproductive, or problematic in other ways. But there is nothing inherently illegitimate about the state taking actions to, for instance, ensure that our public roads are safe and our watersheds are clean so as to avoid poisoning someone's person or property by transmission through common mediums. And this is true even though many of us will have different ideas about how clean the air or water should be, how "safe" or uncongested the roads should be, and so on.
Immigrants aren't simply teleported into Galt's Gulch, where they remain for the rest of their lives. Entering the country involves crossing a border, which demarcates the boundaries of the state's inherent defense obligations. The state has the legitimate authority to protect "our stuff" and "our spaces" from outsiders, just as I have a right to protect "my stuff," even when I do so for reasons beyond my material self-interest or self-preservation.
Collective management of common spaces may be less than ideal. Much of my own scholarship explores how and why to allow private and nongovernmental ownership of ecological resources. Yet in the absence of such reforms, collective management is necessary and legitimate.
To say that it is legitimate for the government to impose limits on immigration is not to say that any and all such limits are justified. Valid state powers may be misused or abused.
Take national defense. Few would deny that this is a legitimate function of the government. Yet to admit the legitimacy of national defense is not to endorse any and all defense policies. Many are unwise and even oppressive, but that is a problem of the specific policies, not a problem with the entire endeavor.
Likewise, in thinking about immigration, it is important to differentiate the question of whether the state may limit entry into the country from the separate question of the extent to which the state should pursue that interest (and the question what means of doing so are just and proportional).
Some argue that limits on immigration infringe upon the associational rights of citizens. Not really. I have the right to associate with those who will associate with me. I don't have the right to impose those associational preferences on others or make them bear the costs of that choice. In a wholly privatized world, it might be sufficient to let the owners of each space determine who does or does not enter, but that is not the world we inhabit.
If I refuse to let someone onto my property, I might be a jerk, but I have not violated anyone's rights. The same is true when the state prohibits entry into the nation or restricts egress through common spaces under the state's control. While I want the United States to be an open and welcoming place and a refuge for oppressed people from other lands, that doesn't mean aliens have a "right" to come here.
There are many powerful arguments to be made against current immigration policy, and many have been made in Reason's pages. Among other things, the system is economically wasteful and inhumane. By all means, libertarians should criticize current law and the ways in which it is being enforced. What they should not do is argue that immigration is no concern of the state.
Let's Err on the Side of a Presumption of Liberty in Our Immigration Policies
Jonathan Adler is among the country's sharpest legal minds—but unfortunately his understanding of what open borders means is flawed and, therefore, his critique is flawed too.
Adler says that "open borders" libertarians believe that it is "inherently illegitimate" for the government of a free society to impose "any" limits on immigration. But the most thoughtful open border theoreticians don't say the government may never place limits on any foreigner. Rather, we argue that in a liberal polity that is serious about protecting individual freedom, the government's powers to limit immigration should be severely constrained, just as they are when it comes to speech, gun ownership, and the other liberties.
Take speech: Even ardent First Amendment absolutists don't dispute that the government can sometimes impose viewpoint-neutral time, place, and manner restrictions. They would, however, demand that anytime the government engages in content-based restrictions, it demonstrate a "compelling state interest" and submit to strict scrutiny. They would oppose the use of mere "community standards" to censor obscene or hurtful speech. They sure as hell wouldn't accept the government banning speech for national security reasons without meeting a very high bar.
Open border libertarians advocate something analogous. They believe that there should be a presumption for liberty built into a nation's immigration laws if it wants to stay (classically) liberal. The default condition should not be a blanket ban on entry that is relaxed for this or that category—low-skilled, high-skilled, family-based, diversity visas—in response to some political whim. The default should be openness. If the government can show a "compelling" interest to keep some particular person out—because she or he poses a national security, law and order, or a public health threat— fine, it can close the border to that individual. Not otherwise.
This is essentially what University of Colorado's Michael Huemer, one of the boldest libertarian open border theorists and author of The Problem of Political Authority, proposes. He claims that immigrants have a prima facie right to be free from coercive state harm—but it's not like this right can never be overridden. "Harmful coercion is not always wrong," he notes. "In positing only a 'prima facie' right, I leave it open that the right may in some cases be outweighed or otherwise defeated by competing moral considerations."
In the classical liberal understanding, the state has "powers" and individuals have "rights" that constrain these powers. It's not very libertarian to frame an issue in terms of the sovereign's "right" to control the borders.
Such a starting point must inevitably end in illiberalism. Why? As the London School of Economics political theorist Chandran Kukathas argues in his forthcoming book, Immigration and Freedom (Princeton University Press), given that people have a natural desire to travel, explore, barter, love, and marry across artificial squiggle lines on a map, the state cannot control "outsiders" without also controlling "insiders." Indeed, if literally no one in a country wanted immigrants, newcomers couldn't survive and wouldn't come. "Yet the propensity to truck and barter and to collaborate in various…ways is a deep feature of our nature, and foreigners will rarely find themselves welcome nowhere," Kukathas notes. Hence, as the Trump administration's crackdown on immigrants reaches unprecedented levels of cruelty, his crackdown on domestic employers, sanctuary cities, and humanitarian outfits, ramps up as well.
Yes, condo owners have a right to restrict entry to their gated communities. But unlike my homeowners association, the state has a monopoly on coercive force. At condo meetings, when majorities override the interests of individual owners in the name of some common good, the owners can leave and form another association. But the state governs everyone. There is no escaping its tentacles short of quitting the country—and a state with sweeping powers can restrict that, too. If it's not "inherently illegitimate" for a government to limit the number of people coming into a country to prevent congestion and pollution, why is it not also "inherently illegitimate" for it to prevent, say, rich citizens from leaving because it needs their taxes to improve the country's common spaces?
If a state has the same powers that homeowners and condo boards have over their property, couldn't it also suppress speech and religion that it believes are antithetical to the common good? Adler's rationale for the right to limit immigration—overstraining the commons—would also apply to children. Should the government have the power to control fertility rates? How about foreign goods—should the government have unconstrained powers to restrict trade? Imports are transported on publicly funded roads and could end up using scarce landfill space, after all. Adler ignores that the state is a fundamentally different animal from a condo association and to give it the same powers is to give up on a government with enumerated and limited powers.
Adler denies that restricting the right to entry of immigrants violates the rights of citizens, but his own condo association analogy shows otherwise. Citizens, in his scheme, are co-owners of the condo's common spaces and sole owners of their homes and businesses. Yet if the government could control their guest list, wouldn't it be a violation of their property and associational rights?
At best, one can say that the rights of those who don't want foreigners here and those who do are in tension. Even then, however, the tension isn't equal. Under an open border default, those who oppose immigration still have control over their private property. Don't like foreigners? Don't invite them to your home. But when laws keep foreigners out, the only remedy for those who have personal or economic relationships with people born elsewhere is to move to where their loved ones and workers are. They even lose control over their alleged private property.
Libertarian restrictionists think that forcing natives to cough up taxes for the public schooling of immigrants is "forced integration" that violates free association (as if immigrants don't pay taxes!). But again, that logic would apply not just to people entering the country from abroad but also those entering from the womb. The taxation argument can in fact be used to justify a limitless government that controls one's fellow citizens' every move. It turns the libertarian project on its head by becoming a justification for a leviathan.
Even in a mixed economy with an incomplete articulation of property rights, such hyper-protectiveness is antithetical to the fundamental live-and-let-live ethos of libertarianism. A liberal immigration regime is good policy, yes. But it is also good on principle.