Open Borders

Restrictionism Will Devour the Rights of Americans Too

Liberty is not divisible. The rights of immigrants and Americans are inextricably linked.


I delivered the following remarks at the first Open Borders Conference organized by the Free Migration Project some weeks ago. Among the other libertarians who spoke were George Mason University's Bryan Caplan and Ilya Somin.

Most of the time, one hears two basic arguments for generous immigration policies—one, that I call the conservative or self-interested argument and the

ICE Protest
Alex Milan Tracy/Sipa USA/Newscom

second that I call the progressive or altruistic argument. The self-interested case for immigration basically emphasizes the economic benefits of immigration for the host country. The progressive case stresses the benefits for the immigrants themselves.

But there is a third, libertarian case, for immigration—namely that border controls and immigration restrictions empower government and lead to more state violence not just against immigrants but citizens themselves. They curtail the liberties of native-borns because any attempt to control outsiders must inevitably result in controlling insiders as well. So there is a self-interested but moral case for opening up the borders.

Or at least that's what I'm going to argue and demonstrate with examples today

F.A. Hayek famously argued that when government interferes with the peaceful, voluntary activity of individuals to achieve some collectivist end it puts its country on the Road to Serfdom. It matters little whether these ends are socialistic ones such as equality through income redistribution—or conservative ones such as cultural preservation by restricting trade and immigration. The fact of the matter is that if these restrictions leave individuals substantially worse off, they will find a way to circumvent them—unleashing all kinds of unintended consequences.

But the government's failure to achieve its ends will not be perceived as evidence that there is something wrong with these ends—that perhaps they are out-of-sync with the legitimate aspirations of people. Rather, the failure will be blamed on an insufficient use of force in achieving ends that are otherwise good. Thus, an initial round of coercion inevitably spawns ever more draconian rounds, putting the country on the path to "serfdom"—or a police state.

But the question is why does government coercion inevitably have to escalate? Why doesn't the initial crackdown succeed?

The reason is that when laws deem acts that have actual victims as "crimes," they are for the most part self-enforcing. The government has strong buy in from the public and the vast majority of people obey them spontaneously and automatically. Indeed, most people don't go around killing, stealing, pillaging and raping. So authorities have to go after only a minuscule number of violators, which in functioning polities is a manageable task.

However, it is hard to obtain that kind of automatic buy-in for victimless crimes that are crimes only because the government decides to treat them as such. Too many people are either indifferent to these laws— or profit by subverting them or actively oppose them.

Think about it this way: If enough Americans really didn't want to have anything to do with immigrants, immigrants wouldn't come because they couldn't survive. They wouldn't be able to get jobs, fall in love with Americans, get married, have kids. They'd be shunned. But that is not the case. For every immigrant, there are a whole host of Americans who benefit from his/her presence. So in order to enforce this rule of law, authorities can't rely on voluntary compliance. They have to resort to an ever-escalating, disproportionate and therefore lawless use of force against Americans themselves. As London School of Economics' libertarian political theorist Chandaran Kukathas notes, "Immigration controls are not merely border controls but controls on the freedom of the population residing within those borders."

The most vivid illustration of this is Arizona which, thanks to the intersection of aggressive state laws and federal efforts, has become ground-zero for "interior enforcement." This has produced untold damage to the liberties of Americans—not just poor minorities, but rich whites; not just liberals, but also Republicans.

Everyone has heard of Arizona's SB 1070—or your paper's please law that subjected the state's Latino community to widespread profiling and harassment. I won't dwell on that. But three years before that law was passed in 2010, Arizona embraced LAWA or the Legal Arizona Workers Act. It required businesses to use E-verify to check the status of employees, the first state to do so. And LAWA imposed "business death penalties"—the loss of operating licenses etc—for businesses that "knowingly" employed unauthorized immigrants. In other words, its aim was to save American jobs by shuttering American businesses!

Sheriff Joe Arpaio went to town with this new law. He created a "criminal employment squad" to go after restaurants, car washes, janitorial cleaning services—you name it—that might have undocumented workers in their employ. In order to boost his image as "tough on illegals" ahead of a re-election campaign, he used this squad to simultaneously raid not just the workplace but even homes of business owners. His agents would swoop in, hand over anyone suspected of being undocumented to ICE. And they would arrest the owners of the establishment and also managers suspected of cooking the books. Over the course of a year he went after about 80 workplaces and rounded up 800 people till his reign of terror became so out-of-control that a massive outcry forced him to disband his squad. One establishment he went after that I wrote about extensively in a Reason article was a restaurant called Uncle Sam, whose owner is a card-carrying Republican so popular with "patriots"—as blood-and-soil conservatives are called locally—that the local Republican club held its monthly meetings there. But Arpaio, to settle a vendetta, went after the restaurant owner on trumped up charges and basically ruined it. The court threw out Arpaio's charges eventually. But that didn't undo the damage to this restaurant's reputation. The owner has sued Arpaio and Maricopa county for damages.

Arizona, btw, stopped enforcing LAWA and E-verify because these laws sent the Sunshine Grand Canyon State into a recession one year before the rest of the country and it stayed in it two years longer. However, federal policymakers like Steve Miller who are pushing similar measures and worse at the federal level against "crooked employers" are less likely to back off in the face of such ruin.

But employers are not the only ones being hurt in Arizona and it's not just state laws that are doing the hurting. Federal "interior enforcement" is also decimating the liberties of ordinary Americans. A big chunk of Arizona is located in what the ACLU calls a constitution-free zone. This is a band along the border but stretching 100 miles into the interior where the Supreme Court has given border patrol sweeping powers to search vehicles and luggage just as it does at "ports of entry." In effect, the border has moved inwards. Recently, border patrol has been stopping Greyhound buses nationwide in this zone and demanding to see passengers' papers. What does this remind you of?

But consider the plight of just one border community in Arizona called Arivaca. Arivaca is a little hamlet eleven miles from the Mexican border on the foothills of the San Luis Mountain that I visited last year. Its 800 residents are mostly white but also some Hispanics, who've lived there for generations. It's surrounded by rolling hills, ravines and meadows. It has one grocery store and a restaurant. And that's about it.

Border Patrol has wired the Mexico-facing side of the town with satellites and sensors to detect any movement in the ravines and meadows. But ten years ago it decided to set up a "temporary" checkpoint on the other side of the town under the guise of gaining "operation control" of the border. The stated purpose of the checkpoint was to protect the residents from the illegal flow of drugs and migrants.

In fact, the checkpoint makes Arivaca residents feel like they are living in the West Bank on a daily basis. They have become the enemy because, as far as border patrol is concerned, you never know when one of them starts doing drug runs for cartels or hauling migrants for coyotes. The upshot is that anytime any Arivacan has to leave town, to take their kid to a dentist, catch a flight, go to work, they have to pass through the border checkpoint. If agents decide they want to search their car, Arivacans can either voluntarily comply and let them look and get it over and done with quickly. Or they can refuse and be detained till a canine team arrives to sniff their vehicle. In principle, agents need "reasonable suspicion" to stop anyone claiming to be an American citizen. In practice, if you are driving a sedan with a closed trunk rather than an open pick-up truck, that can raise "reasonable suspicion." If their truck has camping gear or heavy equipment, that can raise "reasonable suspicion." It they are in a hurry and don't make requisite small talk with checkpoint agents, that can raise "reasonable suspicion." If they are too mouthy, that can raise "reasonable suspicion."

Arivaca residents are fed up and have been agitating to get the checkpoint—which was supposed to be temporary, after all—removed. These people are not open border libertarians. But they feel harassed.

There are a dozen such checkpoints in Arizona and a hundred nationwide.

But the liberties of Arizona residents aren't just raped at border checkpoints. Border agents routinely and without permission barge into the sprawling yards of ranchers, dogs in tow, to look for holed up illegals.

As if that's not bad enough, under Trump, the agency has obliterated other previously sacred legal boundaries. For example, literally every government everywhere recognizes that some "sensitive locations" such as schools, courthouses, hospitals and churches are off-limits to enforcement action because the mission of these entities—which is to serve everyone irrespective of citizenship or social status – has to be respected. But except for churches, this administration has picked up illegals in all these places. And not just illegals but also Americans "aiding and abetting" them. It recently arrested Scott Warren, a university professor and humanitarian worker at the "No More Deaths Camp" in the Sonora desert that administers first aid to lost border crossers in distress from dehydration or heat stroke. Warren's crime? He violated federal anti-harboring laws and let three exhausted migrants stay at the camp for three days till they recuperated rather than shooing them away immediately. The purpose here is clear: Send a signal to aid workers that if they help migrants, the feds will come after them. No More Deaths camp near Arivaca has been abandoned because aid workers are now afraid of being arrested.

Congress has actually considered a bill that would prosecute churches and soup kitchens that offer free meals to illegals. Trump of course has been going after sanctuary cities, trying to defund them etc. In addition, his administration is wildly cheering laws passed by states like Texas and Ohio that seek to arrest duly elected local mayors and leaders if they refuse to cooperate with federal deportation efforts or "criticize" anti-sanctuary policies, basically outlawing dissent. Arizona is considering a law to freeze the assets of pro-immigration protesters. The feds have weakened due process and made detention and deportation of anyone suspected of being in the country illegally so easy that about 4,000 American citizens are getting caught in the dragnet and being deported annually.

None of this should be surprising. Such assaults on the liberties of citizens is not a bug but a feature of an aggressive immigration enforcement regime.

Immigrants are so intimately enmeshed in the American workplace and communities that the government can't surgically excise them—while leaving Americans unscathed. Behind every outsider there are insiders who benefit from him/her. Immigrants and citizens rights are therefore inextricably linked and government has to either respect everyone's rights or no ones. And in the escalating War on Immigration, the government is alarmingly choosing the second course.

Kukathas has compared immigration restrictionism to apartheid in South Africa and I would also compare it to Jim Crow. What's common to apartheid, Jim Crow and restrctionism is the logic of human control.

Apartheid and Jim Crow were of course characterized by strict restrictions on the movement and employment of blacks. But the government couldn't just ban blacks from taking certain jobs or engaging in certain activities without also controlling the whites that wanted to hire them or marry them or engage in other activities with them. Hence in South Africa and Jim Crow intermarriage bans affected not just blacks but also whites. In South Africa, the government started monitoring white newspapers, books, films and music to make sure they were not soliciting blacks or advocating on their behalf in defiance of the state's wishes. In Jim Crow, it wasn't only blacks who were thrashed and beaten and imprisoned they worked in white establishments – these establishments were fined and vandalized too.

A crackdown on immigrants—to be truly effective—can't help but swallow the entire Bill of Rights. Citizens and non-citizens alike will all be victims of it.