Immigration

How Migration Restrictions Undermine Meritocracy

ICE's recent decision to bar foreign students enrolled at universities with online-only classes is the tip of the iceberg of a much larger problem.

|The Volokh Conspiracy |

The federal government's recent decision to bar foreign students from remaining in the United States if they are enrolled at universities scheduled to have online-only classes has drawn widespread criticism. Co-blogger Irina Manta summarizes some of the injustices inherent in this policy here. I would add that, even if the students in question can continue to "attend" online classes from abroad, they are likely to be denied access to other important educational resources such as library books and other research materials, laboratory equipment, and so on. In addition, it can be extremely difficult to take an online class if you are living in a time-zone many hours away.

It is deeply unjust that some students are effectively cut off from educational opportunities they have earned and paid for merely because of morally arbitrary circumstances of birth. The difference between "foreign" and "domestic" students usually comes down to citizenship status, which in turn is largely dictated by who your parents are or where you were born. Allocating educational opportunities on such a basis is morally arbitrary, and certainly contrary to the meritocratic principles on which university admissions are supposed to be based.

The new ICE policy is just the tip of a much larger iceberg of ways in which migration restrictions undermine meritocracy. Many of them are actually much more severe.

There is disagreement about exactly what qualifies as meritocracy. But, generally speaking, meritocrats believe that important educational and economic opportunities should be distributed primarily based on some combination of skill, talent, and  hard work, not based on arbitrary circumstances of birth outside students' and job applicants' control. The paradigmatic opposite of meritocracy is a system of hereditary aristocracy, in which opportunities are distributed primarily based on who your parents are.

Today, hereditary aristocracy is widely condemned in liberal democratic societies. Even relatively limited forms of it come in for widespread criticism. For example, many point out that "legacy admissions" at elite universities are unmeritocratic, and should be rejected for that reason. The fact that Mommy or Daddy attended Harvard says nothing about whether Junior deserves to do so, as well. Conservatives and other critics of affirmative action for racial minorities similarly argue that an applicant's race or ethnicity are outside her control and in and of themselves tell us nothing about her merit.

But that which is widely condemned in the domestic context is equally widely accepted when it comes to migration restrictions—even though the departure from meritocracy is far greater in the latter case. Our system of immigration restrictions—and that used by most other nations—is essentially a form of hereditary aristocracy by another name. I explained why here:

For most people, citizenship status determines where you are allowed to live and work, which in turn largely determines not only your economic fate, but often whether you will have protection for even very minimal human rights. And citizenship itself is largely determined by birth—much like membership in old-time aristocracies. If you were not born a US citizen or a close relative of one, there is very little chance you will ever be allowed to emigrate here. For most others, the so-called "line" they must join is either nonexistent or likely to be decades or centuries long. The same point applies to your chances of emigrating to just about any other advanced liberal democracy….

Like traditional aristocracy, the new aristocracy of citizenship is not a totally hermetically sealed class. Just as a commoner could sometimes join the nobility by marrying an aristocrat, so a foreigner can become eligible for American citizenship by marrying a current citizen. And just as kings and emperors would sometimes elevate to the nobility those commoners they considered especially deserving (or especially useful), so modern governments sometimes grant residency rights…. to particular classes of migrants without family connections to current citizens…. These exceptions to the rule of hereditary privilege are important. But they are still exceptions to a general rule that keeps the vast majority "in their place."

The deviation from meritocracy here is vastly greater than those many complain about in other contexts. If you are born in Cuba, Venezuela, or Zimbabwe, and migration restrictions force you to stay there, you are highly unlikely to ever escape poverty and oppression—no matter how talented, hard-working, or otherwise meritorious you might be. The difference between the opportunities you have and those enjoyed by even relatively disadvantaged Americans, Europeans, or Canadians is enormous. And if you cannot work or study in a freer or more advanced society at all, that is an even greater imposition than that faced by foreign students victimized by the new ICE rule.

By contrast, if legacy preferences or affirmative action prevent you from getting admitted to Harvard or Berkeley, there is a good chance you can still attend a selective college, often one that is just one rung down from the one that rejected you. There is still a deviation from meritocracy. But it's far smaller than in the case of migration restrictions.

There are situations where internal restrictions on mobility lead to far larger deviations from meritocracy than college admissions preferences. For example, exclusionary zoning  restrictions cut off millions of people from moving to areas where they could find better job opportunities. They too impose large disadvantages on people based on where they happen to have been born. Discussions of meritocracy rarely focus on zoning, even though it leads to far greater arbitrary disadvantage than many of the policies that get more attention.

Hereditary disadvantages imposed by migration restrictions are sometimes defended by analogy to families. The scion of wealthy parents inherits a lot more than the child of poor ones, even if he or she is not especially meritorious. If families are allowed to favor "their own," why not nations?

The answer is that governments are not analogous to families. And their powers cannot and should not be determined by analogy to such private entities, any more than they can be properly analogized to those of private clubs and homeowners. Accepting such analogies has dire implications for natives, as well as immigrants. For example, if governments are entitled to the same broad powers over "their" territory as private property owners enjoy over their homes, they would have the right to censor speech and suppress religions they disapprove of. Similar consequences follow if we assume that governments should have the same kind of powers as, for example, parents typically enjoy over their minor children.

In addition, there are ethical limits to nepotism even when it comes to actual families. While we generally assume wealthy parents should be able to transfer their possession to children, we generally frown on nepotism in commercial life and in public institutions. A corporate executive who promotes her incompetent son over more qualified people is acting unethically. The same goes for an influential government official who does the same thing. Few argue that Donald Trump's assignment of important White House jobs to his underqualified relatives is justifiable because it is legitimate for the president to favor members of his own family.

There are those who believe that even family inheritance should be restricted in order to reduce deviations from meritocracy. Thus, some defend inheritance taxes as a mechanism to achieve that goal. If you take that view, then you have even more reason to oppose the vastly greater violations of meritocracy caused by immigration restrictions. An American who inherits a lot of money from her parents has important advantages over one who inherits little or none. But they pale in comparison to those either has over a person trapped for life in Venezuela or Zimbabwe.

I don't claim that meritocracy necessarily trumps other values. Far from it. In my book, Free to Move: Foot Voting, Migration, and Political Freedom, I defend greatly expanded migration rights primarily on the basis of increasing political freedom and human happiness. To my mind, these objectives are more important than meritocracy. If the only way to achieve a society with a high degree of freedom and happiness is to have very little meritocracy, I'm willing to accept the trade-off. But migration restrictions greatly diminish the freedom and well-being of both immigrants and natives, as well as making a mockery of meritocracy.

There are, of course, other types of objections to migration rights. If valid, some of them could outweigh even very large violations of meritocracy. I don't claim to settle that issue here. But if you care about meritocracy, that should create at least a strong presumption in your mind against the types of severe migration restrictions that currently exist. The presumption need not be absolute. But the more you value meritocracy, the more is needed to overcome it.

 

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  1. In addition, it can be extremely difficult to take an online class if you are living in a time-zone many hours away.

    There speaks a man who never worked a night shift.

    1. Night shifts also suck.

      Except you’re not graded at the end.

      1. They may suck, but they’re not “extremely difficult”. The suckage is more on the level of annoying; You get out of work, and all the fast food joints are serving breakfast when all you want is a freaking burger. The kid next door is bouncing a ball off your bedroom wall while you’re trying to sleep.

        I’ve worked both evening and midnight shifts, and they’re annoying. Nothing more. Back when I was in college, if the university had offered me a “shift premium” on my tuition if I’d taken my classes at night, I’d have jumped at it.

        1. Back when I was in college, if the university had offered me a “shift premium” on my tuition if I’d taken my classes at night, I’d have jumped at it.

          No premium was offered, but my recollection of college – hazy at best and not merely because of the passage of time – was that the whole of my college life was conducted as if on night shift.

          Though I believe I did have to get up before noon to take the actual exams, which was something of a disruption to the routine. Perhaps I should have asked for a dispensation, or some kind of grade premium.

          1. Not much in the way of late night classes at Michigan Tech in the late 70’s. A few of my labs were in the evening, and that was about it. Admittedly, this might have been because I was pretty proactive about signing up for classes. Didn’t want to risk the only openings for required classes being at the same time.

        2. and all the fast food joints are serving breakfast when all you want is a freaking burger

          Finally an important topic.

          When McDonald’s announced “all-day breakfasts”, I was irritated. They were going the wrong way. I wanted burgers in the morning.

          What I really want are beef McMuffins, with a beef patty instead of sausage.

          1. Preach it! I still recall getting off midnight shift, all I want is a hamburger, and nothing but breakfasts. So I say, fine, and buy a sausage McMuffin. And a razor sharp bone chip the size of a quarter lays my gum open!

            Today I would have been set for life. In the 70’s, all I got out of it was some blood loss and eating soft food for a week while I healed.

          2. A lot of places let you customize more than you would think!

            I get sourdough buns on almost everything I ever buy from Jack In The Box because it’s the bomb. Ask and ye (may) receive!

  2. I’ve said this before, it bears saying again: If the Constitution does not enact Mr. Herbert Spencer’s Social Statics, neither does it enact Rawls A Theory of Justice.

    Non-citizens simply do not stand in the same relation to a government as citizens. Their welfare is at most a side constraint on what a government should do, the welfare of citizens should be a government’s central goal, or else it has no excuse for most of what makes it a government. Government has no excuse for existing if it does not exist for the welfare of those who labor under its burdens.

    1. Lou Rawls had a Theory of Justice?

      1. He was a Renaissance Man.

      2. We all have theories of justice, it’s just that for most of us, they’re not thought out.

    2. I can’t comprehend how people don’t get the distinction between people from a place, that are citizens, and any other rando.

      Do people not see that somebody has a greater responsibility to their children or parents or brother than to some random asshole on the street? It’s the same deal.

      People who object to people not wanting to let in useless, uneducated welfare cases always bring up “But we have those born here too!” The thing is, just like family, we’re stuck with them! Technically if we could deport every screw up, it WOULD make the country a WAY better place. But it’s not practical, as nobody sane would want them, and it’s also kinda shitty. Again, one might feel obligated to help (to a point) a screw up child of theirs if they make a bad life choice, but one has ZERO obligation to do the same for some guy you met 30 seconds earlier.

      These are all such painfully obvious things they shouldn’t even need to be said out loud. Back in the day people just had common sense. Now these pseudo intellectuals try to concoct entire crazy complex arguments to dance around obvious shit. It’s ridiculous.

      1. Do people not see that somebody has a greater responsibility to their children or parents or brother than to some random asshole on the street? It’s the same deal.

        That deal is so 1840s. The current deal is that parents have greater responsibility for “their” children, only because the state provisionally allocates that responsibility to them, during good behavior. But one toenail out of line and the responsibility reverts to the true parents – the whole village. As represented by the village’s child services department.

        You clearly have no conception of the damage that the direct biological contributors to the village’s children can do by installing wrongthink subroutines in impressionable young minds. These are dangerous people and they need to be watched very carefully.

        1. Sadly this isn’t far from the mark in what many peoples thinking really boils down to if you get to the first principles of the matter.

          I really don’t understand how things go so out of whack. It must have been so amazing growing up 50 or 100 or 200 years ago when people were sane about things. The truth is I think the world had the clearest, closest to reality worldview around the turn of the 19th century, and it’s been down hill ever since. They’d accepted science and dispelled most superstition, but still accepted reality as it was mostly.

          Many of the arguments of the enlightenment have been twisted and perverted to imply things they never implied… And things that are simply factually incorrect. Like the idea that ALL people are ACTUALLY created equal. Factually wrong. Individuals vary in 1,000 ways, men and women are not the same, etc etc etc.

          1. I’m guessing, but I suspect that academia – where all these notions fester, and eventually ooze out into reality – is full of non-breeders. And proportionately more so than in the 1950s.

            If you construct your notions of child development, education, family life etc on the basis of theoretical people of your own imagining, rather on than actual ones, you are liable to find actual people much in need of reform. Or if you are a Marxist, replacement.

            Twould be interesting to see a profile of the academy compared to the nation, in re breeding.

            1. Oh yeah. When you look at a lot of the world leaders who make crazy decisions you find a vastly disproportionate percentage of them don’t have kids. Why do they care what the repercussions of letting in 10s of millions of incompatible refugees are 50 years from now, they won’t be here! Since they don’t have kids they don’t have that direct, visceral feeling of really caring either.

              I know that academia was very slightly right leaning in the 1960s, and is now insanely left leaning. Studies have been done on that shift. I am sure the breeding thing is the same. You could technically just sub the known stats for liberals vs conservatives and probably rough out the math (liberals breed way less), but I’d bet the academics are even less likely to breed than a prog with comparable education outside of academia. IIRC the average for PHD holders is less than 1.0 children per woman, so probably not even barely half have 1 kid, let alone multiple!

  3. Any person has the right to leave his home country to seek freedom and opportunities elsewhere.

    But he doesn’t have the corresponding right to enter another country without its permission.

  4. Wow! Another retarded open borders article, who woulda thunk?

    “The difference between “foreign” and “domestic” students usually comes down to citizenship status, which in turn is largely dictated by who your parents are or where you were born.”

    Yeah, and the fact that my ancestors have been in this land for going on half a millennia (Early 1600s for the honkies, my native ones far longer!), and conquered and then built up this country through their blood sweat and tears. The fact that I have not one but TWO direct ancestors who were officers (not enlisted men) in George Washington’s revolutionary army, the guys who literally created this country. Helped found a major American city in the 1600s, and went out west and founded another city they named after themselves in the 1800s. Etc etc etc.

    This is MY peoples country. It isn’t owed to all these other assholes. We have dibs, which means we decide who comes here or not.

    That’s how nations have ALWAYS worked, the way human nature works, and there is nothing wrong with it. It works that way because all other ways create huge fucking problems. Like the ones we were dumb enough to create here, that are going to lead to a civil war with a strong racial tinge any time now.

    The bullshit argument that western civilization MUST allow itself to be destroyed and overwhelmed by foreigners is a bankrupt moral argument. All people have a right to their own territory and culture. Anyone who violates that is a dick, as it is an immoral act.

    How would commies feel if 300 million Europeans decided to move to Zimbabwe, outvote the natives, take over control of the country, impose their views about everything? Oh wait, that happened in the Americas and the shit libs think it was the worst thing ever.

    Western civilization has a right to exist. It cannot exist if we allow endless immigration. Period. Europeans are vastly outnumbered in the world. There are more Chinese or Indians alone than all white Europeans on earth. Honkies deserve rights too, it’s not a one way street where only brown people get to have a nation and a culture of their own.

    Unfortunately too many white people are too stupid, uneducated on history, and brainwashed to understand this, so we’ve allowed the west to come to the verge of destruction before even thinking about addressing it… But all the idiots will figure it out in the coming decades as the anti-white bias IN THEIR OWN COUNTRIES gets cranked up to 11.

    1. Also, a few points that negate the entire book:

      1. The problem with international migration is that when using a 1-10 scale for freedom, when people move from a 3, because they personally desire a 5 level of freedom, but they move to a nation that’s a 7, they will drag down the freedom of the natives. Therefore destroying freedom for them. This is the case with ALL immigration to the USA, including commie Europeans. People have a right to say “Fuck you” to those people.

      2. People DO have a right to maintain their way of life. I am 110% in favor of secession in all its forms, including within current nation states when the cultures diverge too much to want to stay together. This is the only thing that may save freedom in the USA today, splitting it up! Self determination IS a right across the board, whether people want to accept it or not. This country was founded on it.

      3. Again, the fact is that many of the arguments used for international movement DO actually hold up to logical scrutiny domestically. One COULD improve an area by not letting in welfare cases, leftists, or ethnic groups that are problematic. The thing is the social contract we decided upon in the USA, and in most other nations, allows for it. But that isn’t to say the logic isn’t sound. We just decided to not allow it as a compromise.

      So there ya go. Your whole book is retarded and wrong, and has no understanding of human history, our innate human psychology, or group dynamics. Every multicultural society in history HAD to be held together with violent force. Think all the empires. The moment the force went away they always break up along ethno-religious lines. Because that is the default way people like to live. The way all the POCs are behaving today in this country proves it beyond a shadow of a doubt too. White people practice it in their every day lives without being willing to consciously admit it too, because they’ve been told that wanting to be around people like them is wrong… When it’s not.

      Allowing mass non European migration into the western world was literally the biggest mistake in the entire history of the world. Utopian morons like you have probably set into motion events that may cost 10s of millions of people their lives to set things straight. Thanks dumb ass!

      1. He’s well aware that his life is much better than it would have been, because he and his family got the chance to move here. And being a generous guy, he wants to share the good stuff.

        He wants to share it so bad, he can’t accept that this is actually lifeboat ethics, and sharing the good stuff too widely and indiscriminately will mean EVERYBODY loses the good stuff. The lifeboat is already listing thanks to stowaways.

        That’s right, Ilya: If you’d been rescued from the sea by one of the Titanic’s lifeboats, you’d have then tried to pull so many more people in from the sea it would have sank under you and everybody else who was already in it. And you’d have all drowned. That’s exactly what you’re attempting right now with the US, and you’re too blind to see it.

        1. Yup. The lifeboat scenario is in fact perfect for the situation.

          I’ve actually argued in the past that the Americans that founded this country actually WOULD have been better off not letting in many of the later European immigrants too. If America only had 150-200 million people, all those Anglo-Germans that were here saaay pre civil war, would be able to score a house on the beach in California for vastly less money. Our average income would be way higher because industries like oil etc are somewhat limited in their maximum output, so 5 million (or whatever it is) oil jobs gets lost in the mix more in a country with twice the population.

          The fact that things eventually panned out okay, after many problems, doesn’t mean it was the best for THOSE people already here even as is… And the current types of immigrants bring FAR more potential problems than letting in more Germans, Irish, or Englishmen that folded right in almost immediately. How well have blacks folded into the broader population? I think we’re importing a lot more groups that will end up being perpetual nations inside a nation like blacks vs Italians or Irish that assimilate after a generation or two.

  5. “The new ICE policy . . . . ”

    No, it’s not a “new ICE policy”, it’s actually what the law says. There was a temporary exemption for the spring 2020 and summer 2020 semesters.

    1. Yeah, but obeying the law is racist! Laws should always be obeyed if they support a progressive agenda, but if they’re don’t they’re automatically racist/sexist/homophobic/transphobic/ableist or perhaps all of the above. It’s science bro. You can’t argue with it.

    2. Nope.
      Nothing in the law requires in-person.

      1. It requires that the visa be necessary for educational purposes. If the education doesn’t require that you be in the country, you don’t need it for educational purposes.

        1. Which is only true if you assume COVID continues forever.

          This is hostage taking by the Admin to get schools to re-open.

          I actually think schools could re-open based on how Europe’s done okay, but this is disruptive and ham-fisted and will have a follow-on effect in America’s draw for worldwide talent.

          1. No, it assumes that, when the university reopens, then you get your visa back.

            And, you’re right, it IS hostage taking by the admin, to get the schools to reopen. They’re not taking the students hostage, though, because so long as the classes are online, they absolutely can take them from their home countries. They’re taking the university budgets hostage; The universities can’t feasibly demand full tuition and, especially, dorm fees, from remote students.

            None the less, they ARE just enforcing the terms of the law: If you don’t need to be in the US to attend classes, you don’t need the visa.

            1. You don’t ‘get visas back’ there is no holding place for visas.

              This is not the terms of the law. The law says nothing about if you don’t need to be in the US.
              This requires universities to *predict* to ICE for each student’s in-person courseload what will happen by July 15th. ICE will review their visas based on that report.

              And, of course, it’s not a reg – didn’t go through notice and comment. Because what’s the burden?

              1. “You don’t ‘get visas back’ there is no holding place for visas. ”

                That’s exactly the question: If you’re a student at Harvard, say, and they decide you’re all remote classes this coming year, you don’t need the visa, you simply don’t.

                What happens next year, when they go back to in person classes? That’s a question of implementation, and I agree that it is critical.

                And, guess what: It’s not a reg, because it’s just a reversion to the existing rule, it was the temporary WAIVER of the rule that didn’t go through notice and comment! Now they’re just scaling back the WAIVER. Not even all the way, just partially.

                So if your complaint is that they didn’t go through notice and comment, your complaint is actually that they didn’t deport a bunch of people they should have.

  6. The whole point of Trump insisting on enforcing the current law and regulations to the letter is to ratchet up the pressure on universities and primary education to reopen in the fall. And I concur wholeheartedly. As the father of a university student that is considering taking a break in the fall unless classes reopen, I think it’s time.

    Same with elementary students, we can’t sacrifice 2 years of the educational progress of our youth, the ones that need personal instruction the most are the most vulnerable. The ones that can manage online instruction will do well in almost any circumstance.

  7. As the father of a university student that is considering taking a break in the fall unless classes reopen

    Que ? A break ? A break from partying, chasing (or being chased by) bodily fluid partners, and drinking much more alcohol than even the toughest neuron can withstand is what kind of a “break” ?

    Unless they’re going to stay home and read Kant, in the original German.

    1. I’d SO recommend against “taking a break”, unless the break comes in the form of disciplined self-study on the topics you should have been taking classes in, so that you can test out of them when you come back. Once you break out of that academic, class taking mindset, and start enjoying real life, it’s hard to get back to it.

      The voice of experience: I took a year out of college to nurse my mother after a bad auto accident, and it was NOT easy getting back to college.

  8. A corporate executive who promotes her incompetent son over more qualified people is acting unethically. The same goes for an influential government official who does the same thing. Few argue that Donald Trump’s assignment of important White House jobs to his underqualified relatives is justifiable because it is legitimate for the president to favor members of his own family.

    Prof Somin accidentally hits on one of the main justifications for nepotism – in politics as in business. Loyalty.

    It is much better for a political leader to have incompetent subordinates who are incompetently working to achieve his objectives, than terrifyingy competent subordinates who are working competently to undermine his objectives or to eject him from office. Trump has been fortunate that the apparatchiks trying to undermine him have not demonstrated any more competence than his relatives.

    1. I’d also add that nepotism is perfectly fine, and to be expected, in family owned companies. It’s only legally objectionable in publicly held companies, because it represents a violation of fiduciary duty.

      The problem with Ilya’s remark here, is that he doesn’t seem to think he needs to demonstrate the asserted under-qualification. Especially in light of the fact that loyalty is a legitimate qualification in these sorts of positions.

      1. It’s only legally objectionable in publicly held companies, because it represents a violation of fiduciary duty.

        It may be a breach of fiduciary duty if the boss is doing it to line his family’s pockets at the expense of shareholders. But if the boss is doing it to maximise shareholder returns, then it’s not a breach of fiduciary duty.

        But how – asks the determined meritocrat – could having a less competent subordinate help the business more than having a more competent subordinate ? Because business, like politics, and war, is a team game, and following team orders and being a known quantity may be more useful than being fiendishly brilliant. Sometimes.

        This is also why people at head office have a much higher chance of promotion that people in the boonies. They are known quantities.

        1. “It may be a breach of fiduciary duty if the boss is doing it to line his family’s pockets at the expense of shareholders. But if the boss is doing it to maximise shareholder returns, then it’s not a breach of fiduciary duty.”

          That’s why I said “problematic”, not “illegal.”

          1. Hm, my apology, I’d intended to write “problematic”, but now notice I never got around to that edit. So, you’re right.

    2. Trump not picking “true believers” in the stuff he’s trying to do has been his biggest mistake by far. He needed to fire just about every employee in the federal government that he was legally able to fire. The deep state runs deep. There are people in the wings who would be GOOD ENOUGH to replace them with. Think the FBI. Do we want a bunch of people like are there now… Or would it be better to have fired thousands of them, replaced the top men with actual patriots, and had them hire a bunch of previous sheriffs, city PD guys, etc that also ACTUALLY care about the country.

      Basically he’d need to find a bunch of guys playing the AAA league in various types of jobs and promote them to the big leagues. He would have dealt a horrible blow to corruption, and actually been able to get things done.

      It’s what MUST happen to save the country. Of course people would say he’s acting like a dictator, even if it was well within his legal rights to do it… And the left DOES do purges every time they get a chance. But they’re calling him a dictator now, so why not actually get something useful done too?

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