Immigration

How Immigration Restrictions Undermine the Rule of Law

Legal scholar Dan Farber explains how the vast executive discretion created by current immigration law is incompatible with rule-of-law principles.

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In an insightful contribution to the Yale Journal on Regulation online symposium on Adam Cox and Cristina Rodriguez's important new book, The President and Immigration Law, UC Berkeley law Professor Daniel Farber describes how America's system of immigration restrictions is inimical to the rule of law:

Here are the basic facts on the ground: Roughly eleven million people are living in the U.S. without legal permission, half of them having been here for ten years or more. The deportation system is capable of handling only a tiny fraction of those millions. At least for those who avoid arrest for serious crimes, deportation is seemingly a result of bad luck, aggressive enforcement officers, or shifting currents in immigration policy…

At present, Congress seems incapable of either providing a pathway to permanent status for settled immigrants or the wherewithal to deport millions of them. Staunch immigration opponents themselves seem to lack the stomach for a massive deportation program. Even our most vehemently anti-immigration president, Donald Trump, never asked Congress for the resources to identify and round up ten thousand people a day for about three years, which is what it would take to remove the current undocumented population. On the other hand, there is bitter opposition to regularizing the status of undocumented long-term residents….

Among its faults, the current system is at odds with the rule of law. The rule of law requires that government decisions deeply impacting the lives of individuals be based on a clear lawmaking process, not the discretion of executive officers. It also requires that the consequences of individual actions be predictable and clear, and that the legal system give people basic security in their ability to live their lives. No legal system can fully satisfy these aspirations, but immigration law falls dramatically short. Since any one of millions of people could be deported, none enjoy full security in their lives. As an operational matter, selection of individuals for deportation is determined by the executive branch, either at the retail level by immigration officers or wholesale through presidential policies. The statutes created by Congress tag millions of people as possible targets for deportation but fail to create workable rules for determining who actually gets deported….

The problem is not just that the system is either too draconian or too lax, depending on one's view of immigration policy. It is also that immigration law, in practice, deviates so far from our norms about how policy should be made and how serious sanctions should be imposed on individuals. That should be a grave concern to all of us, regardless of our policy positions on immigration.

As I noted in my own contribution to the same symposium, the problem here is just one facet of the broader crisis in our legal system, where we have vastly more law—and thus vastly more lawbreakers—than even the most aggressive law enforcement officials can possibly apprehend and punish. As a result, undocumented immigrants are far from the only people who remain free only because of the discretionary decisions of law enforcement agencies, prosecutors, and other executive branch officials. The same applies to the tens of millions of Americans who have, for example, violated federal drug laws, or the many thousands of small businesses who have violated federal regulations or tax laws at one time or another. But the immigration situation is particularly problematic because of the severe consequences of detention and deportation, and the very weak due process protections for those caught up in the system.

Farber argues that there is no easy solution to the problem, though he does suggest some modest reforms. I fear he is right about that. But I do outline some incremental improvements in my contribution to the Yale Journal on Regulation symposium, including subjecting immigration policy to the same constitutional constraints that apply to virtually all other areas of federal policy (see also my 2019 Atlantic article on this subject). This would substantially reduce the extent of executive discretion and could be achieved through a combination of judicial review and legislative reform.

Ultimately, however, the best way to deal with situations where the rule of law is undermined by having too many laws, is to reduce the number of laws. In the immigration field, that means making it much easier for would-be migrants to enter legally. In the legal system, more generally, it means substantially reducing the number of laws and regulations to which people are subject.

The rule of law is not the only important principle out there, and cannot always be prioritized over other goals. I recognize that most, if not all, of these laws are on the books because they enjoy substantial support from the general public, influential interest groups, or some combination of both. All too often, both left and right are intent on imposing their preferred criminal laws and regulations on the public, while giving little if any consideration to the possible impact on the rule of law. Wide-ranging executive discretion may even be a feature rather than a bug, so long as the people in power belong to our preferred party.

It may, therefore, turn out that we simply lack the political will to make the reforms needed to restore the rule of law in immigration policy—or anywhere else. Perhaps we just don't value the rule of law as much as the rule of men and women whose agenda we like. But, if so, we should at least recognize the tradeoff we are making, and do what we can to minimize the harm at the margin.

But it is also possible that many people simply haven't given much thought to the tradeoffs involved. Once they do see them, they may be willing to make some sacrifices to strengthen the rule of law, even if it means some of their own preferred laws have to be narrowed or—potentially—taken off the books entirely. Here, as elsewhere, the first step towards recovery is recognizing that we have a problem.

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  1. Canada makes it easier for French speakers to immigrate to Quebec…maybe we should have laws like that that give preferential treatment to foreigners we want here instead of letting foreigners that happen to share the same continent as us bully their way into our country???

    1. Hi, Ilya. Until you support the immigration of 100,000 law professors from India, you need to STFU. You are an Ivy indoctrinated, Hate America, Democrat agent of the Chinese Commie Party, trying to turn the US into a permanent one party shithole like California. These topnotch performers would love to teach law school for the high salary of $25000 a year.

      Eugene is no better. He lives in LA. He is incapable of overcoming that Democrat culture. Eugene is clueless about the lawyer profession, the most toxic occupation in the nation, 10 times more toxic than organized crime.

      Then from both of them, we need the home addresses. We are sending these shithole country people to their home streets, not to those of minorities. The lawyers can undergo ethnic cleansing by their vicious organized gang members.

      https://www.splcenter.org/hatewatch/2013/01/15/latino-gang-leader-convicted-la-ethnic-cleansing-campaign

      1. Somin has taken shits that have done more for American conservatism than you ever have or will.

    2. Minorities did great under Trump, as did all other employees, because he stopped immigration. Immigration suppresses the wages of everyone for the unjust enrichment of the tech billionaires. They used their media and the Democrat Party to take down the greatest President since George Washington. Why? He was on the verge of causing tremendous wage pressure by his labor shortage. The bottom paid workers got 9% raises, year over year. Trump had to go. They used a weak cold virus as a pretext to shut down the economy and to devastate the stock market. They won this time. We owe them payback. It should come in the form, not of regulation, not of endless, worthless, rent seeking anti-trust actions, but in the form of seizures of their assets and long prison sentences for the billions of federal crimes committed on their platforms.

      Ilya is a lawyer. He is just too stupid. He will never understand that is what immigration is about, to make the US a permanent one party Democrat state and to advance the unjust enrichment of tech billionaires.

      1. Yep, that was the point of giving Cubans special treatment—make Florida a red state.

        1. It was Kennedy and maybe Johnson who did that — I seem to remember that they were Democrats…

      2. These are the ravings of a lunatic, but notice how eerily close they come to Trump conservative mainstream talking points…

        1. “Immigration suppresses the wages of everyone for the unjust enrichment of the tech billionaires. ”

        Actually the foreign born work across all sectors and proportionately more heavy in things like agriculture.

        2. “Trump, as did all other employees, because he stopped immigration. ”

        The percent of the foreign born proportion of the work place grew steadily during Trump’s tenure.

        3. “the greatest President since George Washington”

        Even if you ignore someone like Lincoln, some one like Coolidge performed better on the metrics that Trumpistas say they care about (he signed the most restrictive immigration bill in our history and was a true small government guy)

        4. “used a weak cold virus”

        Much more deadly than ‘weak cold virus’

        5. “a pretext to shut down the economy ”

        We took few actions that other nations around the world did not, I guess it’s a global conspiracy to get Trump.

        6. “seizures of their assets and long prison sentences”

        Fascism

        7. “Ilya is a lawyer. He is just too stupid”

        Lawyers score well over the average on standardized aptitude tests.

        1. Obviously not a lawyer. Have a blessed day, whatever your preferred pronoun is, Madam.

        2. 1. “Immigration suppresses the wages of everyone for the unjust enrichment of the tech billionaires. ”

          Last time I checked, Ceasar Chavez was a hero still to the Democrats.

          Perhaps he should not be. He loathed massive immigration because it undercut union wages.

          1. Can everyone just acknowledge the Democrats want a free inflow to win elections, and the Republicans do not, and they are soulless bastards flip flopping?

            Ahhhh, it explains so much and life is so easy.

            1. The rest is masking ideology.

          2. Dems let their heroes be flawed; to be heroic but human. FDR, Chavez, MLK, etc.

            By contrast, looks at the way the right thinks about Trump. Or Reagan.

            It’s an interesting asymmetry.

            1. More like, “By contrast, look at the way the left thinks the right thinks about Trump.”

              The only cult of personality around Trump I’ve ever seen has been the cult of hating him, on the left.

              1. Trump’s a bit too close to be a great example, but the right is calling him the best President ever, and some of y’all are still talking like he’s a God-imbued prophet or something.

                Obama got a bit of that before he got into office, but not after.

                The main point is, Chavez being for a policy the left doesn’t care for anymore isn’t really a very good argument. Plus, of course *I am against illegal immigration* I just want to take it to the businesses, and find the dehumanization, cruelty, and demonization I see on the right on the issue to be awful.

                BTW the left is just as silly with their bumper-sticker ‘abolish ICE’ nonsense.

  2. Perhaps we just don’t value the rule of law as much as the rule of men and women whose agenda we like. But, if so, we should at least recognize the tradeoff we are making, and do what we can to minimize the harm at the margin.

    What exactly is that trade-off, and how do we evaluate the degree of harm? And why cannot the rule of law be prioritized over all other goals?

    1. AND how is this trade-off any different from the trade-offs we made when we decided to enforce the OUI laws in the 1980s? We threw lots of solid American citizens into jail for that — and worse, took away drivers licenses that many needed to get to work and such.

      I don’t see how illegal aliens — who are CRIMINALS — should somehow demand amnesty from their crimes, nor how that does anything but make a mockery of the “rule of law.”

      1. Setting aside that only about half are criminals, who other than a criminal could demand amnesty?

    2. Perhaps Ilya should have the honesty to admit that the immigration restrictionists he attacks are the ones who value the rule of law. His allies are the ones who made this mess by refusing to enforce the law, or permit it to be enforced. Classic rejection of the rule of law: They couldn’t, or didn’t dare, repeal the law.

      So they just violated it, year after year.

      1. Brett, based on this comment I have to conclude you didn’t read this post. He clearly shows the failings of both sides in the situation. And nothing in the post could be construed as attacking immigration restrictionists.

        1. Ilya has repeatedly attacked immigration restrictionists, which, from his perspective, is anybody who doesn’t want completely open borders. I’m supposed to not mention that?

          1. It’s my earnest but surely vain hope that at some point, all discussion under a blog post will be discussion actually pertaining to that post.

        2. Imagine that we had a long run of administrations that disapproved of enforcement of laws against something else. Oh, I don’t know, maybe looting, to pick something at random.

          When in power they basically didn’t enforce such laws, though public relations would require them to claim they were. The looters would often be arrested, but then the charges quietly dropped, and, of course, the property they’d stolen would NOT be returned to the rightful owners.

          When out of power, they obstructed enforcement of such laws, deliberately starving enforcement mechanisms of resources. As a result, anti-looting administrations can, at best, go after current looters, and lack the resources to track down and try those past looters. Why, in some cases the past looters actually used the money from fencing the stolen goods to go to college, and become productive citizens!

          The argument is that they’re both tearing down the rule of law, the anti-looting forces are just as guilty due to their less than complete enforcement. And the only solution that can restore the rule of law is to make looting fully legal.

          That’s Faber and Ilya’s crazy argument, in a nutshell.

          1. Well, I just want Professor Somin (or anyone else here at VC) to chime in on what I thought were two very good points in the blog post.

            First….what are those trade-offs Professor Somin mentions?

            Second….I really would like to understand why the rule of law should not be prioritized over other goals. What is the argument there?

  3. Legalize illegals have complete open borders with no laws and there won’t be anymore immigration lawbreakers. Genius! Why didn’t anyone think of this before galaxy brained Somin?

    1. The number of college-educated people in India exceeds the population of France. They mostly don’t make a lot of money, so perhaps they could come to the US.
      Cell phones are everywhere, so peasants now know exactly how to get to the US border, how to turn themselves in, how to request asylum, and how to disappear while waiting for a court date. There is no practical end to immigration except either stopping them and holding ‘asylum’ seekers outside the US or just letting them in until it gets so awful people stop wanting to come.

      1. I propose that law professors from India be allowed in freely. They would love a big raise in salary to $25000 to work here.

        The people on this blog illustrate the effect called lawyer dumbass. You take someone born with a very high IQ. They undergo 1L. They become far more impaired than students in Life Skills Class, learning to eat with a spoon. Name those students to the Supreme Court for an immediate improvement in decision making and in the clarity of the writing.

    2. If Ilya valued the rule of law then he should be in favor of a wall or some other barrier that helps to prevent people from entering into the uncertain life status he laments.

      1. Whoops — this was meant as a reply to Brett B, above.

    3. Amos, please show me where in this post Prof. Somin advocates for “open borders with no laws..”. That’s some weak strawmanning. As usual.

      1. There’s a reason you said, “in this post“, and you know it. We’re supposed to ignore everything else he’s written?

        1. Not at all. But what does the comment have to do with this particular argument in this particular post? Instead of responding to his argument here, Amos brings up his understanding of something Prof. Somin argued in a different post, and bashes that instead. Straw man.

          1. It’s called “context”.

            1. It’s called ad hominem. Engage with the argument, not the writer.

  4. The entire world has strict immigration. Why is the United States expected to have open borders? Ever try to even get a work permit in another Western nation including Canada? Yeah….good luck.

    This is why no one takes libertarians seriously anymore. They think immigration is some sort of racist, broken system left over from the ages of yore. They have no concept of the notion of a sovereign nation, culture, and citizenship. And that just makes them look stupid.

    1. Isn’t it interesting how closely ostensible libertarians like Jimmy’s argument mirrors that of the Leftist ‘all other industrialized nations have [insert government welfare program here]?

      1. As usual you conflate two issues to set up a straw man argument representing what you think libertarians believe. Typical of the hard left fascists like you that inhabit the internet sewers.

        1. Ok, smart guy. Explain. My point is, Jimmy’s argument is ‘all nations other than us have tough immigration laws, so why shouldn’t we?’
          Leftists say ‘all developed nations have big welfare states, so why shouldn’t we?’

          Do your work (don’t hire an immigrant to do it!), what’s my problem with equating these.

          1. There is a difference between internal policy which provides for the citizens of a nation state and external policy permitting admittance to that nation state. But, yeah I doubt you will understand…

            1. There’s also a big difference between the rule of law discussion of the original post and the open borders straw man you bring up.

              1. “Open borders” is a very good summary of the immigration stance that Somin generally advocates. Calling it a straw man doesn’t make it one.

                1. As I just explained above, it is a straw man because it evades the argument Prof. Somin is making in this post, which has nothing to do with open borders. Next post he makes advocating open borders, have at it!

      2. Where on earth did you get the idea that JtD was ostensibly a libertarian?

  5. Lots of people ignore the speed limit as well, with only a few of them getting tickets — so Ilya would have us stop issuing speeding tickets?

    In the 1970’s, it was estimated that over 10% of the vehicles on the highway on Friday & Saturday nights were operated by a drunk driver — and that when it was over 1.5 BAC, with the limits being reduced first to 1.0 and now to 0.8 BACs.

    No Ilya, we dealt with this by enforcing the law. And that is how we deal with the current problem of illegal aliens trespassing in our country.

    1. “Lots of people ignore the speed limit as well, with only a few of them getting tickets — so Ilya would have us stop issuing speeding tickets?”

      No do gun control. Or taxes.

      1. Absolutely Queen! Actually ENFORCE the gun control laws on the books, as opposed to just issuing new ones.

        Start with Hunter Biden

        1. Do you want us to enforce the tax laws with the same vigilance we enforce the immigration laws? Did you know that there are an estimated larger number of people in violation of tax laws in the US than there are estimated undocumented aliens?

          1. Not gonna start enforcing the gun laws, eh? Surprise!

            1. You do realize that despite the title, Amalthea probably isn’t in a position to enforce any laws?

          2. There are actually 30 million illegal immigrants here. You are claiming more than 30 million tax returns are fraudulent?

            Cite your sources or shut up.

            1. “There are actually 30 million illegal immigrants here. You are claiming more than 30 million tax returns are fraudulent?”

              I’m claiming your 30 million number is fraudulent. There’s not that many more than 30 million people in the US that weren’t born here:

              https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/

              Meanwhile, the IRS estimates 17% of taxpayers don’t comply with the tax code in some way, so that would indeed be considerably more.

            2. Yeah, time for you to step up to bat tough guy. If I provide a cite that the number of tax cheats is > than the number of immigration law cheats will you shut up and never comment here again?

              Man up, puss puss.

              1. I noticed you quickly ran away from the concept of enforcing current gun laws.

                I wonder why?

                1. Like Bump Stock laws?

                  1. ATF Form 4473 fraud and lying. You want to keep guns out of the hands of people who shouldn’t get them, right? Shouldn’t you enforce those laws?

                2. Also, you’re for making the ATF budget=CBP, amirite?

          3. “Did you know that there are an estimated larger number of people in violation of tax laws in the US than there are estimated undocumented aliens?”

            Seems like two groups with considerable overlap, no?

            1. Indeed…

          4. “there are an estimated larger number of people in violation of tax laws in the US than there are estimated undocumented aliens”

            Bullshyte!!!

            Although if this were true, it ought to be dealt with.

  6. “Rule of Law”. I don’t think that means what you think it means.

  7. That Boulder shooter was Trump hater, open borders advocate, and sjw. If we can classify the capitol protest as an insurrection and a reason to crack down on rightwing groups why can’t we classify this shooter as a pro open borders terrorist since he killed many more people than the ‘capitol insurrection’ and crack down on open borders groups?

    How come nobody is talking about this and its all about gun control this time? Why does the Left always get to pick and choose what political angles are going to be focused on for every instance?

    1. Could it be the former involved thousands of people and the latter one?

    2. The Capitol insurrection was planned by the groups they’re cracking down on and the whole event was explicitly political, whereas the Boulder shooter doesn’t seem to have acted with any coordination or political objective. He was also a wrestler, but we don’t look at wrestling groups as part of the problem because it seems not related to his motive.

      And the reason we talk about guns every time is because the US has both a unique abundance of guns and a unique problem with mass shootings, so many draw the inference that the two are related.

      (This is not that hard to figure out.)

    3. Or the Nation of Islam perp who killed a USCP officer yesterday.

      We need car control, not gun control!

      And I’m not seeing any mention of Radical Islam…

  8. “most vehemently anti-immigration president, Donald Trump”

    Prof. Somin, you continue to lie about Trump’s position on immigration. He is opposed to ILLEGAL IMMIGRATION, not legal immigration.

    1. Weird how he wildly clamped down on legal immigration while in office if that’s the case.

      1. Global pandemic and all…. Lots of places clamped down on new international people coming in

        1. That does plausibly explain some of the more recent restrictions, but he tightened restrictions on H1s, and there were way fewer F1s issued from 2017 – 2019 as well. And of course, he limited the number of slots for refugees to be legally admitted by more than half in his first year in office.

          1. USCIS naturalized 834,000 new citizens in FY 2019 – an 11 year high in new oaths of citizenship.

            What you really want to do is look at the number of green cards issued (per year) by Trump versus Obama. You’ll be surprised

            1. Seriously?

              To be naturalized, you generally have to be in the US for at least five years. So essentially all of those people entered the country before Trump was President.

              Green cards aren’t issued for initial entry to the US, either. First you have to immigrate under some sort of visa regime that allows for conversion to permanent status, and many of the people getting green cards entered before Trump came into office either. Meanwhile, Trump clamped down on all of the places where he had discretion to make it more difficult for people to legally enter the country.

              1. “Seriously?”

                Show your work. In total. Over all categories Over all 4 years. Compared to all 8 years of the Obama administration. You may be surprised.

                Don’t use tiny area, in one year, in a vacuum.

                1. Sounds like you have some work to show.

                  1. JB certainly does, making blanket assumptions as they did.

                    1. You may be surprised is certainly implying you know something.

                      Don’t be coy – out with your evidence!

                2. https://www.migrationpolicy.org/programs/data-hub/charts/annual-number-of-us-legal-permanent-residents

                  There you go. The number of people admitted for lawful permanent residence declined year over year in every single year in the Trump administration.

  9. I don’t know what should be done about immigration, it’s a legitimately tough issue.

    But what Ilya gets is what many ostensible libertarians miss. Libertarianism is often criticized as a mask for people who don’t want government to help minorities.

    Now, on most other issues, ostensible libertarians will say things like: “if you make x illegal you will just create a huge, intrusive government enforcement department, make otherwise lawful, peaceful people into criminals, etc.” It’s that way for hate speech, guns, drugs, etc., etc.,

    But then ostensible libertarians are more and more saying ‘well, when it comes to immigration (which is mostly people of color nowadays), we have to depart from these arguments/principles!!!’).

    And the ostensible libertarians around here are not self-aware enough to realize what Ilya does: that starts to be hard to pass the smell test.

    And then you get people like Aktenturd who will come out and say the benefits should be understood in racial terms, but the ostensible libertarians here opposed to libertarianism curiously do not dispute him.

    Which, of course, compounds the smell test problem.

    1. And again you misrepresent what libertarians are actually saying, you just present your retarded interpretation of it.

      1. Here is the mark of a true troll:

        “You’re wrong and dumb!”

        With no comment about how and why the person is wrong.

        Keep it up, buttercup.

    2. I’m mostly libertarian. I think we should enforce every single law every single time. With the max penalty every single time. We should eliminate plea bargains as well. Nothing else will stop the spread of laws that micro manage our lives.

      1. I appreciate your answer. But what about the idea that some libertarians have argued that there are so many laws on the books that each and every one of us commits three felonies a day?

        1. What about it? Enforce all those laws, to the max. Make legislatures deal with the consequences of what they write, rather than being bailed out by resource limitations in the other branches. (Not that I agree, but the application of Harvey’s logic is straightforward.)

    3. Libertarians love immigration because we are the great, shining city on the hill. Come here and live free from dictatorship and oppression.

      Democrats do not. Their rhetoric is this is a racist, fundamentally flawed society.

      Libertarians want liberal immigration because in an economically free society, the more the better.

      Democrats do not want an economically free society, and want the immigrants to win elections to ladle more and more regukatory burden (as, purely coincidentally, I assure you) their familiesnget richer and richter from investments, and not because of corruption plaguing many other countries as people gk into government to block things, then ?????, then partially unblocked oh look I am worth 46 times what my decades in Congress paid.

    4. Why shouldn’t affirmative action extend to immigration — we need more cute blond females immigrating — eg Swedish Bikini Team…

  10. People on the other side of an international border are outside the scope of a nation’s laws. Rule of law is irrelevant because there’s no relationship (legal or otherwise) between the nation and the foreign individual across the border.

    To the extent you police the border effectively and maintain the (lack of any) relationship, rule of law does not apply at all.

    Too bad for lawyers. No opportunity to meddle, no opportunity to use legal process to your benefit, no role for lawyers all. It’s understandable why a law professor might be irritated by that. Too bad. Human relationships don’t exist to satisfy law professors.

    1. Well, what of the asylum laws that we on this side have passed regarding people on the other side?

      1. You’re saying asylum laws don’t get abused? Are you being deliberately obtuse?

        1. Is that what I wrote? Are you literally retarded for thinking so?

          1. In a discussion about rule of law, frequent abuse of those laws is a very relevant topic. If you want to point at those laws as a way that “rule of law” applies to people outside the border, you have to deal with both sides of that: satisfying the statutory conditions, not only providing asylum.

      2. What about them? Asylum is a gift. No one has a right to it.

    2. Wow, this has nothing to do with anything that Professor Somin wrote, other than including the words “rule of law”. The whole piece is about unpredictable enforcement of immigration rules for people already inside the US.

      1. It’s a lot of weird complaining about a problem migrants created for themselves by breaking laws.

        If they wanted to live secure and predictable lives they should have arrived here legally and/or left when their visa expired.

        Their rightful status is as foreign nationals outside the borders. The restoration of that rightful status should be done according to orderly procedures that protect basic international human rights conventions that the US has agreed to, but “rule of law” is the wrong standard because no one seeks to “rule” these individuals, merely to deport them and restore the rightful situation before they arrived here illegally or overstayed their visa.

        Trespassers are complaining about bad hospitality. There’s no need to take those complaints seriously.

        1. It isn’t even in the slightest bit about any of that. It’s about passing laws and not also passing the necessary measures to enforce those laws, thus leaving enforcement to the discretion of the executive. It is a problem that doesn’t just apply to immigration law. Your immigration rant is just a straw man.

          1. Illegal aliens don’t have an uncertain or ambiguous status. They are merely yet to be deported. Enforcement will get to them eventually.

            The only “rule of law” considerations are Obama’s and Biden’s repudiation of their oath of office as they do not intend to faithfully execute the laws. If Obama and Biden (and 5 SCOTUS justices) were true to the oaths they swore, then “rule of law” would not be in question.

            1. Yet more straw men, nobody said anything about uncertain or amiguous status. And even if a President intended to faithfully execute the laws and deport every single illegal alien, he couldn’t possibly do it given the resources currently appropriated to him by Congress. So this faithful executor would have to pick and choose, making prioritizing decisions about which ones to deport. That’s the law and order problem singled out in the post. It isn’t about being untrue to oaths, or “obstruction,” as Brett puts it.

          2. It’s about passing popular laws, and blaming the people who want them enforced for the obstruction committed by the people who don’t. And the only way to solve their supposedly mutual guilt is to repeal the popular laws, so that the obstructionists won’t have to obstruct them anymore, and the people who want them enforced won’t have anything to enforce.

    3. More machine guns on the border, fewer lawyers…

  11. The problem is not that the law is too complicated. The problem is that the law wasn’t enforced. So, it led to a de facto situation which was different from the legal letter.

    Ilya’s response is to pass yet more laws, which would make things more complicated, rather than simply enforcing the current laws.

    To give an example: There are speed limits. They are not actually enforced as written. The number of cops who will pull you over for going 66 mph on I-95, when the speed limit is 65 mph approaches zero. The de facto situation (the speed limit is 75-85 mph) is different from the actual law. Actually enforcing the 65 mph law all at once would be a shock.

    The answer in both situations to slowly reinforce the current law, to avoid a shock situation. The answer is NOT to raise the speed limit to 75 mph, so now people can go 85-95 mph…. Nor is it to suddenly legalize all the people who are here illegally, so more illegal immigrants will come.

    1. Prof. Somin’s response is literally the exact opposite of “…pass yet more laws.” Note the part where he writes: “Ultimately, however, the best way to deal with situations where the rule of law is undermined by having too many laws, is to reduce the number of laws.”

      1. Literally the next sentence however was “In the immigration field, that means making it much easier for would-be migrants to enter legally”

        Somin doesn’t actually propose reducing laws. Instead, what he implies is increasing the number of laws and loopholes to enter the country.

        1. I don’t know, I’ve been reading his stuff for a long while, and I’d be hard put to identify any limit on immigration he’d consent to, at all.

          Even the ones you might think he might theoretically support, like refusing entry to plague carriers, end up rendered hollow by humanitarian exceptions and lack of any permissible enforcement mechanism beyond voluntary compliance.

          Maybe I’m reading him wrong. Perhaps he could devote a post to immigration restrictions and enforcement mechanisms he’d admit were legitimate.

          I’m betting it would be one very, very short post.

        2. That’s a strange inference for you to make, given that in the previous sentence, he just advocated for fewer laws. And then the sentence you quote explains the effect that fewer laws would have in the field of immigration. It must be handy to always know what someone REALLY means, as opposed to what they actually write.

        3. Um, no? Reducing laws is how — or at least one way — one makes it easier for would-be migrants to enter legally.

  12. The identical argument could be made about abortion. Abortion decisions, which are completely free choices unfettered by any rules or standards, are completely incompatible with rule-of-law principles, every bit as incompatible as free immigration decisions.

    I don’t think anybody could seriously question that any kind of freedom of choice is completely incompatible with the rule of law. Law is law precisely because liberty of action is bounded and constrained to rules and principles; freedom is freedom precisely because it isn’t.

    The real problem is whether freedom undermines the rule of law. This claim doesn’t strike me as ao obvious. Certainly people have long said so. It’s been a basic argument who aren’t rule-bound when it comes to sex can’t be trusted to constrain theemselves in any other aspect of their lives – that libertineness when it comes to sex undermines character and reliability in all aspects of ones life.

    Professor Somin is making essentially the same argument. If we’re libertines about immigration, doing whatever the hell we want and not willing to bind ourselves by Professor Somin’s moral code, we can’t can’t be trusted to constrain ourselves in any other aspect of our lives.

    I think the idea that sexual libertines should automatically be assumed not to be trustworthy in their dealings with others – freedom of choice in sex undermines rule of law generally — has undegone a certain amount of skepticism.

    Given this, it seems rather late to think that this idea ahould automatically be taken at face value whem ot comes to immigrants. It’s kind of an old chestnut, frankly.

    If we beleive that people who do whatever the hell they please in bed or at the abortion climic can nonetheless be perfectly trusted to behave themselves in public, why should we believe that people in government who do whatever the hell they please with immigrants somehow can’t be trusted to behave themselves with citizens?

    It’s the classic moralist’s argument to claim that ones treatment of one issue somehow influences how one treats others. It’s a very virtuous myth. But it doesn’t seem to be true. If it were true, why wouldn’t it be true of abortion.

    After all, we can tell the difference between aliens and citizens, just like we can tell the difference between fetuses and persons born.

    We can tell what’s a person in the full sense of the word, and what isn’t. There’s no more reason to think our behavior towards the second will affect our behavior towards the first when it comes to immigration as there is when it comes to abortion.

    1. “every bit as incompatible as free immigration decisions.”

      Can you flesh this analogy out for me a bit? Thanks.

    2. “If we beleive that people who do whatever the hell they please in bed or at the abortion climic can nonetheless be perfectly trusted to behave themselves in public, why should we believe that people in government who do whatever the hell they please with immigrants somehow can’t be trusted to behave themselves with citizens? ”

      Holy shit, I just read this.

      Could the answer be, I dunno, one are governmental actors with power to compel others? I mean, no offense but I would have thought that distinction would have sprung to mind first for libertarians…

  13. Another “white supremacist” attacks the Capitol and Pelosi lowers flags to half staff in the most disingenuous half assed gesture to the police that just 9 months ago were all racist storm troopers.

    Well, comes out now that it was a black extremist, so off to the whitewash all the major media has gone. Stories are now off the front page and where you can still find them simply say “attacker”. Nice scrub job.

    1. Nation of Islam as well.

  14. None of these people are allowed to be here under the rule of law as it exists. End of discussion. Turn them away and send them back. Enforce the law. If the law is to be changed, then do the work to persuade.
    Conservatives are fed up with doing this and having leftist judges overrule the law and the left just wants to skip the Legislature altogether.
    This is why President Trump was elected and why many believe he was reelected.

    1. Shoot ’em at the border and I bet you illegal immigration disappears overnight.

      1. It would be very easy. Just stop allowing employers to hire illegals, and stop handing out free government benefits to illegals, and they would all go home tomorrow.

        1. Um, we don’t allow employers to hire illegal aliens, nor are illegal aliens eligible for government benefits.

  15. There has never been a post by Ilya about immigration worth reading.

    Without reading it, I already know the TLDR is: open borders, open borders, open borders!

    Only a fool or an evil globalist thinks this way.

    1. or an evil globalist

      Just say “Jew.” Fewer characters and it’s what you mean anyway.

      1. That’s patently absurd, and offensive.

  16. Ilya, this argument is deeply dishonest.

    You’ve got popular immigration laws, which is why they’re not repealed.

    A large faction in government don’t want them enforced, because large scale illegal immigration has effects they approve of: Distorting apportionment so as to increase their constituents’ voting power. Supplying cheap, easily intimidated labor. Long term demographic changes thought to be politically favorable.

    The people who do want them enforced are deliberately starved for enforcement resources, and so, like somebody in a sinking ship, they must concentrate on patching the holes, rather than removing the water that has already flooded in. Because they can’t do both, they need to concentrate on slowing how fast the problem gets worse.

    And you want to blame the results of that obstruction on the people who are being obstructed. Claim that the people blocking enforcement, and the people selectively enforcing due to that blockage, are equally guilty of violating the rule of law.

    Words can scarcely express how dishonest that argument is.

    1. I don’t think there is anything to suggest that current immigration laws are popular.

      1. Even if they are, what Brett ignores is that the existence of a law may be popular — it makes a statement that people endorse — but vigorous enforcement of that very same law might still not be popular, because of either the direct financial costs of doing so or the burden the enforcement may have on others.

        Because he doesn’t understand that, he just attributes everything to bad faith or hypocrisy.

      2. The very fact that they’re not being repealed stands as evidence of their popularity.

        The very fact that somebody like Trump could get elected promising to enforce them stands as evidence of their popularity.

        1. Trump lost his election by millions of votes. Twice.

        2. Brett, you do know we’re not a direct democracy, yes? We’re designed to allow unpopular policies to stay, once they’re in place.

  17. It’s strange, I mostly support giving amnesty and citizenship to the illegals in this country, yet I’m enraged by the sheer stupidity of Farber’s (and Somin’s) argument here:

    “…The rule of law requires that government decisions deeply impacting the lives of individuals be based on a clear lawmaking process, not the discretion of executive officers…”

    No, it requires no such thing. The United States is not (yet) responsible for the lives of all individual earthlings, we are responsible only for US citizens. It’s true that when someone sets foot in the US legally or otherwise they are immediately vested with some rights they would not otherwise have. But the laws Farber and Somin are referring to here are simple and straightforward. Entering the US illegally means by definition you have broken those laws, and the legal and long established remedy is deportation. That *is* the rule of law.

    Now, outside the rule of law, it’s immoral and unwise to deport these people. Firstly, immigrants from Mexico and the rest of Central America have contributed immensely to the wealth of this country. Fuck Trump when he says “…they’re rapists, they’re murderers…”. In fact they are laborers, entrepreneurs, parents and children … just like us, and good people in general. This applies to those here illegally as well. From a practical matter their cultural views make them natural Republicans, but Republicans instead prefer to kick them in balls to “fire up the base”. That’s not very strategic.

    Secondly, and more importantly, mass deportation would lead to incalculable hardship or worse. Forced mass migration has historically been a tool of genocide, so we’ll never do that. Indeed, the fatality rate of the illegals (during their migration) who come to the US is disturbing. “Slow”, careful, small-scale deportation will never make a dent in the numbers and is therefore pointless.

    There is no perfect solution, but a good start is to legalize everyone who’s been here for a long time already. People fleeing violence and, yes, economic hardship from our South should be welcomed, registered, and placed in some kind of legal status. People with valuable skills from around the world should be welcomed and even recruited to the US.

    1. We gave them amnesty in 1986 — and it didn’t work!!!!

      It only created the current problem. How stupid do we have to be to do it again?

      1. It worked.

  18. Another fine meeting of Libertarians For Authoritarian, Bigoted, Cruel Immigration Policies And Practices is convened at the comments section of the Conspiracy, provoked by the occasion of some genuine libertarian content at a White, male, conservative blog.

    1. If anyone were permitted to take the bar exam, with anyone passing it being admitted to the bar, I think you would see an *immediate* change in opinion from not just Ilya but all of the attorneys who have upwards of $300K (or more) invested in the required 4+3 years of education.

      Not just college graduates from India but also Canada and Ireland could come here and both displace American lawyers and eliminate the market for law professors — and both would change their tunes damn fast.

      Well a lot of blue collar workers feel the same way. And our jobs are being displaced and our wages are being depressed.

      1. Well a lot of blue collar workers feel the same way. And our jobs are being displaced and our wages are being depressed.

        Um, nothing you can say can be taken as true, given your repeated exposure as a serial fabricator. But if anything you’ve said is true, you’re not a “blue collar worker.”

        Also, no, that’s not the effect of immigration.

  19. Very good article. Opposition to immigration is same xenophobia we saw in past centuries directed at the Irish, German and Italians. The dislike of the differences blinds some people to the realities of what they are suggesting. The country we have today was built by those earlier immigrants just as today immigrants continue to help to build this country. To remove those people now would be an unworkable task that would produce far more harm than any benefit.

    1. Hi, Mod. Whatever your income is, it is 50% lower than it should be unless you are a billionaire. Then you are doing very well from immigration, suppressing the cost of your payroll.

      1. Not 50% but considerably lower.

        It’s part of why BT (Before Trump) we hadn’t seen any real (inflation-adjusted) increases in wages since the late 1960s. When the immigration floodgate was first opened by Senator Teddy K, who was at least a millionaire.

      2. The only real effect low wage immigrant labor has for me is that it provides me with lower cost products, especially meat, dairy, and produce. There is really nothing to suggest that they is any great number of American citizens being shut out of work in meat processing facilities or agricultural work. Entry level work at a meat processing plant is on the order of $11. Say that was increased by a $15/hour minimum wage would you get any more citizens to work at the plant? I doubt it.

        By the way, I worked as a chemist and there are not a lot of immigrants doing that work so my wages were never effected.

  20. Once they do see them, they may be willing to make some sacrifices to strengthen the rule of law

    They’re probably just as willing to make sacrifices as you, Mr. Somin. How much money are you willing to spend on immigration enforcement in order to shore up the rule of law? Another $26 billion would have increased total Federal expenditures in 2020 by roughly a half a percent, but would have increased ICE’s Enforcement and Removal Operations budget by a factor of seven.

    So, how much rule of law do you actually want?

    1. “would have increased ICE’s Enforcement and Removal Operations budget by a factor of seven.”

      Not only that, but the money would have gone a lot further toward funding an economic recovery than the trillions that we have spent on these purported bailouts.

      ICE jobs are good jobs with good benefits — and ICE tends to hire *legal* immigrants and first-generation Americans because native fluency in the various dialects of Spanish is a BFOQ. So this money would have gone to American Hispanics and not Wall-Street fat-cats.

  21. “requires that the consequences of individual actions be predictable and clear, and that the legal system give people basic security in their ability to live their lives….Since any one of millions of people could be deported, none enjoy full security in their lives.”

    The law provides basic security if you immigrate legally. If you trespass, you’re in the realm of lawlessness. Who should bear the burden of the “inscecurity” thus incurred by the trespassers?

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