The Volokh Conspiracy

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The Case Against the Public Property Rationale for Immigration Restrictions

The argument has some appeal, especially to libertarians. But it's actually a rationale for sweeping statist constraints on liberty.


One standard rationale for immigration restrictions is that governments have a right to exclude people much like the owner of a private house does. I have critiqued this argument here, and in greater detail in Chapter 5 of my book Free to Move: Foot, Voting, Migration, and Political Freedom. Among other things, this theory, if taken seriously, is a rationale for a quasi-totalitarian state that can suppress speech, religion, and other liberties, at will. It also ends up undermining actual private property rights, by blocking property owners from renting to immigrants, hiring them to work on their land, and so on.

But there is a different, less well-known, property rights rationale for immigration restrictions, one that focuses on public property specifically. I have not seen a serious academic defense of it. But it's increasingly common on social media, and elsewhere, and has particular appeal to immigration restrictionists.

The public property theory (at least implicitly) concedes that the government cannot justly prevent immigrants from accessing the property of willing private owners. But, so the argument goes, it can prevent them from using public property. After all, the state does own public property, and therefore can regulate it as sees fit. Or, alternatively, public property is collectively owned by the state's citizens, and they can use democratic political processes to restrict access as they wish.

Under current law, public property includes almost all major roads, most air space, and most significant waterways (including coastal waters). Therefore, if the government is entitled to restrict access to public property as it wishes, it can effectively bar nearly all immigration, or as much of it as it wants. And it can do so without directly restricting anyone's private property rights! One can readily see why this argument has appeal to people who consider themselves libertarians (and therefore advocate strong private property rights), but also support sweeping immigration restrictions.

Unfortunately, the public property rationale for migration restrictions turns out to have illiberal—and anti-libertarian—implications almost as dire as those of the house analogy. Libertarian political philosopher Christopher Freiman explains how:

Sometimes "bordertarians" argue that the state may restrict immigration because it may dictate how public property—specifically public roads—can be used. On this view, if the state decides that immigrants may not travel on public roads, then immigrants may not travel on public roads.

This is a bad view. I doubt that many of those who endorse it would grant that the state may prohibit citizens from traveling on public roads with books defending libertarianism in their car. States don't have carte blanche to violate people's liberties so long as they're located on public property. This is (one reason) why the "public property" objection to freedom of immigration fails—the state may not violate people's freedom of association or movement simply because they happen to make use of public roads.

If the government—or a political majority—can restrict access to public property however they wish, they can use that power to suppress a wide range of civil and economic liberties. For example, they could bar travel by critics of the government (or bar the distribution of their writings through public property). They could similarly bar adherents of religions they disapprove of (no more Jews on the roads; or no more Muslims!), and so on. Even if you think that real-world democratic governments would stop short of going this far, the public property theory suggests they would have no moral obligation to refrain from taking such measures (at least if they were backed by a majority of citizens).

The implications of the public property rationale for migration restrictions are particularly dire for libertarians. After all, we believe that people have a right to engage in a wide range of unpopular activities! On the public property theory, the state would be entirely justified in forbidding the use of public property to distribute any product it wishes to bar, whether it be drugs, alcohol, fatty foods, vaping products, or anything else. And, just as immigrants can be effectively barred from a nation if they cannot use public property, the same goes for virtually any good or service, so long as its distribution relies on the use of roads, aircraft, or public waterways.

Many of the libertarians sympathetic to the public property rationale for immigration restrictions also favor free trade. But the former can easily be used to destroy the latter. If the government can bar foreign people from roads and airways, the same goes for foreign-produced goods.

It isn't just libertarians who have strong reason to reject the public property theory, due to its dire implications. The same goes for liberals of any stripe who believe people have a right to engage in at least some unpopular activities that government might choose to suppress. After all, given the ubiquity of public property in modern society, almost any human interaction can be blocked by preventing people engaged in it from using roads, airways, and so on. For example, a homophobic society could use this power to bar gays and lesbians from the roads (thereby making it difficult or impossible for them to form relationships).  If the house analogy is a direct path to a near-totalitarian state, the public property theory gets there by a back door—or perhaps by a back road!

It doesn't necessarily follow that libertarians (or anyone) must endorse the view that there should be no restrictions on access to public property. Freiman, I think, has a good approach for how to think about these issues:

So what's a better view of public property? Here's a first take: the state is justified in enforcing only those restrictions on the use of public property that are needed to ensure its functioning, assuming that the function of that property is, in itself, morally permissible. (Clearly the state is not justified in using public property in ways that directly violate rights, just as citizens are not justified in using private property in ways that directly violate rights.)

For instance, a public library may restrict your freedom to check out books by requiring that you have a library card because that restriction is needed to ensure that the lending system functions properly. But the library would not be justified in prohibiting those wearing [Dallas] Cowboys shirts from entering the library because that's not needed to ensure that the library is able to do its job.

Similarly, the state may restrict your freedom to drive on a public road when, for instance, it's being repaired. That's needed to ensure that the road functions properly. But the state would not be justified in prohibiting you from transporting particular books or people in your car.

No doubt this account will need some refinement, but I think it's at least the start of an answer to a hard question for libertarians.

As Freiman notes, the theory needs much more refinement. But it's at least a good start.

Immigration restrictionists can potentially argue, under Freiman's approach, that barring (at least some) immigrants from the roads is justified in order to ensure that they are not overused, or to prevent migrants from overburdening the welfare state, increasing crime, spreading harmful cultural values, and so on. But then the focus of the debate properly shifts to whether immigrants really do cause these harms, and—if so—whether that justifies restricting migration (including by perfectly innocent people), as opposed to imposing "keyhole" solutions. In that event, the public property argument will no longer be doing any meaningful work.

One can argue that the danger of overuse of public property is more closely linked to its functions than some of these other issues, and therefore provides a stronger rationale for limiting immigrant access to roads and the like. But even if overuse is a genuine risk, it should not be addressed by restricting access based on morally arbitrary criteria of ancestry and place of birth (as immigration restrictions do). We can instead impose nondiscriminatory numerical limits, assess tolls, and the like. Moreover, some of the vast additional wealth created by immigration can—if necessary—be tapped to build new infrastructure and finance the repair and upgrading of existing systems.

This entire issue might go away if you believe, as some libertarians do, that all or nearly all currently public property should be privatized. But if that's your view, you should also be opposed to the state using its current control over public property as leverage to impose sweeping restrictions on liberty—including those of immigrants and natives who wish to engage in interactions with them.