The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The rapid spread of the coronavirus pandemic around the world has led some to argue that it strengthens the case for imposing tight restrictions on immigration. Nationalist populists in Europe have begun to promote that idea. Here in the US, President Trump has endorsed a supporter's claim that coronavirus makes it more imperative than ever to build a wall on the southern border, even though the director of the Center for Disease Control indicates there is no evidence that would help curb the virus.
I'm an advocate of open borders. Still, I have long recognized that limiting the spread of a deadly disease can justify some restrictions on freedom of movement across international boundaries; I most recently made that point in my forthcoming book Free to Move (written before the coronavirus crisis began).
At the same time, protection against disease does not justify broader, more permanent migration restrictions. The latter actually imperil health more than they protect it.
I. Quarantines as a Justifiable Constraint on International Freedom of Movement
As I envision it, the argument for open borders is not a case for an absolute right, but one for a strong presumption of freedom to migrate across international boundaries, similar to the presumption of internal freedom of movement in liberal democratic societies. Similar views have been advanced by leading defenders of open borders, such as Bryan Caplan, Joseph Carens, and Jason Brennan, among others.
The case for open borders rests on the points that migration restrictions are severe constraints on liberty, that they doom millions of people to lives of poverty and oppression, and that they do so on the basis of morally arbitrary characteristics, such as who their parents were and where they were born. Migration restrictions also restrict the freedom of natives, as well as migrants, and block the production of enormous wealth that could otherwise have benefited both groups. Finally, most standard arguments for immigration restrictions would—if applied consistently—justify severe restrictions on domestic freedom of movement (and other liberties of native-born citizens), as well. That is particularly true of the theory that governments can justifiably restrict immigration because they have the same right to exclude people from "their" land as private property owners have to restrict entry into their homes. Yet few restrictionists are willing to bite this bullet and apply their arguments consistently to both the domestic and international cases.
But there are cases where these points may not apply or are overridden by other considerations, such as a great evil that can only be prevented by limiting migration. Impeding the spread of a deadly disease qualifies as such.
Saving life is is a major moral imperative. And, at least in some cases, a quarantine may be the only way to achieve that goal in the face of the spread of a deadly disease. This differentiates quarantines from most other arguments for migration restrictions, the vast bulk of which address threats that are overblown, can be addressed by less draconian means than exclusion, or both.
Second, unlike most rationales for restricting migration, this is one widely accepted as a justification for restricting internal freedom of movement, as well. Indeed, the most draconian restrictions on movement enacted by any liberal democracy during the coronavirus crisis so far is Italy's lockdown of their entire population—whose main effect is to prevent Italian citizens from moving around their own country.
If fairly applied, quarantines need not discriminate on the basis of place of birth, parentage or any other morally arbitrary characteristic. They can be imposed on anyone—migrant or native—who poses a sufficiently grave threat of spreading the disease in question.
Finally, unlike conventional migration restrictions, quarantines generally need not and do not last more than a few weeks or months. In most cases, this is a far lesser imposition on would-be migrants than conventional migration restrictions, which routinely exclude people indefinitely, condemning many to a lifetime of poverty or oppression. For most potential migrants to the US and other wealthy nations, there is no "line" they can join to have a real chance of getting in legally within their lifetimes. Not so if the only barrier to entry is a quarantine that will be lifted as soon as the crisis at hand has passed. The short-term nature of quarantines also minimizes the economic harm they cause.
The fact that migration-limiting quarantines are theoretically defensible doesn't mean that all actual policies of this type are justifiable. Here, as elsewhere, real-world governments often fall short of theoretical ideals. Trump's recently announced Europe travel ban, for example, seems unlikely to actually impede the spread of coronavirus. Similarly, it is not clear that Italy's draconian restrictions on freedom of movement are actually effective; at the very least, considerable evidence suggests they are much less so than South Korea's far less coercive approach.
Still, it is significant that quarantines can be justified on grounds that differentiate them from more conventional migration restrictions. Few if any of the latter have a comparably strong case. Whether quarantines are defensible in a given situation depends greatly on the nature of the disease in question—an issue I must leave to those with expertise on epidemiology and public health.
II. Why Conventional Migration Restrictions are Often a Menace to Health.
By contrast, standard long-term migration restrictions not only cause greater harm than quarantines, but also often are a menace to health. Perhaps the biggest reason is that they block the production of enormous amounts of wealth by preventing people from moving to places where they would be more productive. A world of free migration would be vastly wealthier than the status quo.
One of the better-established findings of social science is that wealthier societies are also healthier ones. We are healthier and longer-lived than our ancestors primarily because we are much wealthier than they were. Wealth enables us to produce more medical innovations, and allows us to devote more resources to health care. As a consequence, wealthier nations generally also do much better in minimizing the loss of life caused by epidemics. Migration restrictions make the world much poorer than it would be otherwise, and thereby also slow the pace of improvement in health.
In the United States, migration restrictions also imperil health because immigrants and their children are disproportionately represented among doctors and scientists. Many of the doctors treating coronavirus victims and the scientists working on producing a vaccine are likely to be immigrants. We would be in far worse danger without them.
Perhaps the doctors and scientists in question could have made similar contributions to health care if they had stayed in their countries of origin. But in most cases, that isn't true. The US and other advanced nations offer far better opportunities for medical training and scientific research than the often dysfunctional nations from which migrants hail. Scientists, like many other people, are more productive in nations with better institutions.
It can also be argued that the US should let in migrants who who seem likely to become doctors or scientists, but keep out most others. This, however, assumes that government can do a good job allocating labor, and predicting which types of workers will make useful contributions and where. That assumption is unlikely to be true; if it were sound, the Soviet Union might have been a great economic success story. Moreover, immigrants who are not scientists or doctors themselves can nonetheless increase the productivity of those who are, by increasing the overall wealth of the economy. As already noted, additional wealth tends to translate into improved health.
Immigration restrictions also imperil health in two more direct ways, both of which have special relevance to the coronavirus situation. First, our immigration restrictions have created a large undocumented population. If members of this group come down with the coronavirus (or some other contagious disease), they may be reluctant to come in for testing and treatment for fear that revealing themselves to the authorities will result in detention or deportation. That could imperil not only the undocumented themselves, but others who come into contact with them.
For that reason, a recent statement by experts in public health and health law urges that health care facilities addressing coronavirus cases should be immigration enforcement-free zones:
Healthcare facilities must be immigration enforcement-free zones so that immigration status does not prevent a person from seeking care. The COVID-19 response should not be linked to immigration enforcement in any manner. It will undermine individual and collective health if individuals do not feel safe to utilize care and respond to inquiries from public health officials, for example during contact tracing.
I worry, however, that the federal government may not adopt this sensible policy. Even if they do, official assurances may not be perceived as credible by migrants who have good reason to be wary of immigration enforcers, who have a history of using deceptive tactics.
Second, immigration enforcement has created a system where the federal government detains thousands of migrants in facilities that often feature poor hygiene and medical care. That increases the risk that coronavirus (and other diseases) might spread rapidly among the detainees, and potentially also imperil the surrounding population.
In sum, there is good reason to believe that migration-restricting quarantines are justifiable—at least in some cases. But that justification does not apply to more conventional long-term migration restrictions.
UPDATE: Jason Richwine of National Review responds to this post, as follows:
Libertarians who take Somin's position — that almost everyone should be allowed to enter, but not terrorists or disease-carriers — need to answer a follow-up question: How do they intend to enforce the restrictions? Surely not with a border wall, which is anathema to immigration boosters. How about expanding the Border Patrol? ICE raids? A nationwide ban on sanctuary jurisdictions? To my knowledge, they oppose all of these tools for immigration enforcement.
In order to place meaningful restrictions on who enters our country, we need to have mechanisms in place to ensure that the rules are being followed. That's true for any immigration policy short of open borders. Whether the law bars nearly every foreigner or just a handful of bad actors, enforcement is required to make it happen. And such an enforcement regime cannot instantly materialize in a crisis — it requires an existing set of institutions and procedures developed over time.
As noted in my post, a pandemic can justify not only restrictions on international freedom of movement, but also even some constraints on internal mobility. It does not follow that we must have a large-scale ongoing regime for constraining internal freedom of movement. We can instead have special rules that apply only during an appropriate crisis, and resources to implement them that are available in reserve. When it comes to terrorists and similar bad actors, we can use law enforcement to track international terrorists, much as it does with domestic ones, without a general regime of constraining internal movement.
These sorts of policies do require resources. But nothing like the massive enforcement regime that currently exists to keep out the far larger number of potential migrants who wish to enter during normal times in search of greater freedom and opportunity.
Indeed, the extra wealth generated by increased migration and by reductions in conventional "border security" spending can easily be used to fund a more limited enforcement capacity focused on unusual crises, such as pandemics. And, as noted above, "ordinary" border enforcement has side effects that actually make combatting pandemics more difficult.