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.
Photo Credit: Joanna Andreasson