Category Archive: Immigration

  1. Reddit AMA with Professor Ilya Somin of George Mason University

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    Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.

    Professor Somin has written extensively on constitutional theory, federalism, political ignorance, property rights, immigration, and a wide range of other important policy issues. He is a prolific contributor to the Volokh Conspiracy blog hosted by the Washington Post, and his work has been featured in other major publications such as the Wall Street Journal, New York Times, Los Angeles Times, CNNUSA Today, and Forbes. He’s also the author of several well-received books, including Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, Second Edition, 2016), and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015).

    Fans of Learn Liberty will recognize Professor Somin as the star of our popular video, I Can’t Breathe: How to Reduce Police Brutality, and as a regular contributor to our blog, where he has written about the politics of sci-fi and fantasy series such as Star Wars, Star Trek, and Game of Thrones.

    Mark your calendar for Tuesday, September 19th at 3:00pm ET and join us for a conversation at where you can ask him anything!

    Update: The AMA is now live!

  2. Highlights from our Reddit AMA with Professor Bryan Caplan

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    Last week, Professor Bryan Caplan joined us on Reddit for an “Ask Me Anything” conversation as part of the Learn Liberty Reddit AMA Series.

    Dr. Caplan is Professor of Economics at George Mason University, and a prolific author and blogger who has appeared on ABC, Fox News, MSNBC, and C-SPAN, and been featured in New York Times,  Wall Street Journal, and Washington Post. He starred in Learn Liberty’s Econ Chronicles series of educational videos, and he recently appeared on The Rubin Report in association with Learn Liberty.

    Check out some highlights from the AMA below.



    If you could make any of your blog posts required reading for high school students, which would it be?


    The Magic of Education:

    Demagoguery Explained:

    Labor Econ vs. the World:


    Using whatever metric you like, which of your many heterodox views would you say garners the strongest negative reaction? Do you find that the manner in which you present your viewpoint–whether you are conciliatory or blunt–is a big factor in provoking a negative reception?


    Open borders by a landslide. Unfortunately, when a view is that radical, almost any defense seems blunt. In my experience, keeping a sense of humor helps diffuse negativity. But as usual, that works best if people already know you personally and feel OK about you.


    What do you think of the objection to open-borders that says that foreigners could bring their anti-libertarian cultures (such as those from Islamic countries) and eventually outnumber the local population or attain enough of the population to successfully overturn the libertarian status-quo?


    Theoretically, this is a clear argument. But empirically, I see very little evidence that this actually happens. The only cases that really concern me are when a single immigrant group with strong identity politics and bad average views quickly become a 30% or more of the population.

    I know, of course, that there’s lots of media coverage of anti-libertarian Islamists, but I see this as almost entirely fear-mongering. The terrorism that gets so much attention is, though emotionally horrifying, not a quantitatively big problem.


    With respect to open borders, do you think unilateral open borders are presently a viable policy for a smaller base population country such as Canada? Or would it be necessary for them to limit inflows to some level or coordinate with larger countries to prevent being overwhelmed logistically?


    As long as immigrants know they can’t sleep in the streets, I think real estate prices and inertia provide all the buffer a smaller country needs. Beverly Hills has open borders with Detroit, but no one’s overwhelming Beverly Hills.

    Diaspora dynamics – immigration’s tendency to gradually snowball because immigrants like to cluster around their own group – also greatly mitigates this problem.


    First, I just want to say that I’m a big admirer of your work. You’ve been a big influence on my own intellectual journey, thank you.

    Here’s my question: given your belief in open borders, what’s the most sound argument you’ve heard in favor of closed borders?


     The best argument against open borders is also the best argument against ANY radical change: The status quo is tolerable, we can’t really know with great confidence how radical changes will ultimately play out, so why risk it? You can reinforce this argument by pointing out that gradual reforms capture most of the benefits of open borders policies without the systemic risk.


    I am a former student (GMU Public Finance).

    I don’t have a question but I wanted to comment that I love the concept of the Ideological Turing Test and have mentioned it often to friends of varying political persuasions. I consistently find people fail at it so spectacularly, many times because they assign devious motives to their political opponents. For example, many on the left decry libertarians as selfish and uncaring.


    Yes, I’m proud of that one, especially since it’s found favor far outside my personal fans.


    What do you think are the best ways to market getting rid of Medicare and Social Security? People tend to get the idea that it’s they’re essentially ponzi schemes, but they can’t imagine not having them. Thoughts?


    The best way (or least-bad way) is to focus on the foolishness of taxing everyone to help everyone. Means-tested programs at least serve some useful function – helping people who need help. Universal programs don’t. I’d also try to publicize research on how unimportant health care is for life compared to lifestyle choices. Unfortunately, I doubt these arguments will persuade many people; I just don’t have anything better.


    What is your opinion on the state of the media in the United States, specifically the mainstream media?

    I believe that if the media were impartial in their reporting, Trump might not have fared so well with the election outcome. What do you think?


    From the evidence I’ve seen, propaganda works – though not nearly as well as the propagandists would hope. So I’m skeptical of the idea that anti-Trump media helped Trump. It seems a lot simpler to say that in a more diverse media environment, pro-Trump media partly counter-balanced anti-Trump media, rather than to claim that anti-Trump media is negatively persuasive.



    What are your thoughts on climate change?


    1. I greet all predictions of disaster with skepticism, for reasons outlined here:

    2. I’m not qualified to directly assess the evidence on climate change, so it all comes down to the trustworthiness of climatologists for me.

    3. Climatologists seem moderately ideologically biased in a left- and green direction to me. But they’re still worth listening to within their areas of expertise.

    4. Most climatologists are NOT experts in cost-benefit analysis or environmental economics, so when they move from physical to social prediction, I don’t take them very seriously.

    5. Alex Epstein’s The Moral Case for Fossil Fuels seems quite good to me, though to repeat, I can’t honestly claim to be able to independently assess the science.

    6. Taking mainstream climatologists predictions as gospel, I think the best approach is to wait and see, avoid doing anything that chokes off growth in the Third World (which has dire risks of its own), and use geoengineering if anything really bad starts to happen.

    FuzzyHugMonster (the true scotsman)

    What are your thoughts on vegetarianism?


    I find vegetarian arguments unconvincing. Human well-being just seems vastly more valuable than non-human animal well-being to me. I had a series of blog posts on insect welfare on this issue. Even strict vegans inevitably kill vast numbers of insects, and they don’t seem to think they’re doing anything wrong.

    You could say that’s because insects don’t feel pain, but (a) that seems unlikely to me, and (b) if people did learn that insects feel pain, even ethically scrupulous people wouldn’t change their behavior much.


    I love your work and I’m really waiting to passively aggressively give people ‘The Case against Education’.

    Can you give us an overview what fields of science you used in your argument and your impression on how good the literature on it is.


    I use economics, psychology (especially educational psych), sociology, and education research. As a rule, I try to read by topic, not discipline – to find out what anyone on Earth has figured out about whatever I’m writing about. How good is this research? Quality – and quantity – varies widely. But I won’t say that economists in general do a better job; we’re more methodologically clever, but often less interested in big blatant facts.

    I try to sift the piles of evidence for readers, but of course that hinges on my own credibility…


    Are you gone write a ‘The Case against Education’ style book on Open Borders? Also, could you give some pointers on the most relevant economics literature for the Open Borders question?


    Right now I’m doing a non-fiction graphic novel on this topic, co-authored with Saturday Morning Breakfast Cereal’s Zach Weinersmith. Title: All Roads Lead to Open Borders. Despite the entertaining format, I’m still researching it heavily. After I finish, my plan is to write a traditional tome on Poverty: Who To Blame. Immigration restrictions will be one of the three main blameworthy causes of poverty I’ll cover in the book.

  3. Reddit AMA with Economist and Iconoclast, Professor Bryan Caplan

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    Bryan Caplan is a Professor of Economics at George Mason University. He is a prolific blogger and author of three books: The Myth of the Rational Voter: Why Democracies Choose Bad Policies (2007), Selfish Reasons to Have More Kids: Why Being a Great Parent is Less Work and More Fun Than You Think (2011), and the forthcoming The Case Against Education.

    Professor Caplan has appeared in the New York Times,  Wall Street Journal, and Washington Post, and has appeared on ABC, Fox News, MSNBC, and C-SPAN. He recently appeared on The Rubin Report in association with Learn Liberty, and starred in the Learn Liberty video series: Econ Chronicles.

    Mark your calendar and join us for a rousing conversation at this Tuesday, June 20th at 3:00pm ET where you’ll have the chance to chat with Professor Caplan and ask him anything!

    Update: The AMA is now live!

  4. Immigration policy is first and foremost about property rights

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    What rights are at stake in immigration? The issue is often framed as an either-or question of whether would-be immigrants have a right to immigrate or the native-born have a right to exclude them.

    I think that’s an unhelpful way of framing it; it’s collectivist. It seems to ask whether any and all immigrants should be free to go anywhere they wish, or whether (a majority of) the native-born may exclude all immigrants from going anywhere in the country. Isn’t there some middle ground, whereby some of the native-born may admit some immigrants to some places but not others?

    A property rights approach can help us answer this question.

    Imagine a representative scenario:

    A group of poor immigrants heads for some US town to work on the farms there. They arrive at the US border. If they are allowed in, they get on a bus that takes them to the town, stopping at rest stops along the way to eat and stretch their legs.

    When the immigrants arrive at the town with the jobs, they walk to a boardinghouse offering bunk rooms and simple cooking facilities. They pay their rent to the boardinghouse owner and get some rest.

    The next day they go to the job sites in pickup trucks from the farms. They agree on wages with the farm owners; they go to work. In the evening, they go back to the boardinghouse. Soon they will be able to wire some money home to their families.

    Whose rights are involved here?

    Let’s answer that indirectly. Suppose it’s not an immigrant, but an American citizen, I myself, for instance, who wants to get on the bus, have meals at the rest stops, sleep in the boardinghouse, and work on the farm. Do I have a right to do that, as I have a right to “life, liberty, and the pursuit of happiness”?

    No. I have no inherent right to get on someone else’s bus. But when the bus owner sells me a ticket, he grants me the contractual right to ride his bus on the route specified. I have no right to enter the rest stop restaurant for a meal unless I agree (the contract is implicit in this case) to pay the rest stop owner for the privilege.

    Similarly, I have no right to sleep in a room in someone’s boardinghouse unless I get the landlord’s permission through a rental contract. And I have no right to a job at someone’s farm unless he or she hires me, in an implicit or explicit labor contract.

    In each of these cases, any right I might acquire to ride the bus, have a meal, sleep in the room, or work on the farm depends on the agreement of the owner of the bus, rest stop, boardinghouse, or farm. The owners do have the right to determine who comes onto their property, so if they agree to do business with me, then I have a right, not an inherent right but a contractual right, to make the trip and take the job as described. The owners’ rights and choices to deal with me determine my acquired, contractual rights.

    Should property owners be allowed to hire across national borders?

    Now we come to the crucial question: Do those property owners have the right to contract not just with me, but with any people they wish, even if their home addresses happen to be in some other country?

    I think the answer has to be yes. It’s the owners’ property. They get to decide who comes there and who doesn’t. If so, the immigrants they choose to welcome have a right to immigrate in the manner described.

    The error in the claim that “we” have a blanket right to exclude immigrants from coming into the country at all, “to protect our border,” is that it ignores the property and free association rights of current citizens. The borders relevant to individuals’ rights are the borders of their property, not of political jurisdictions. Property owners have the right to control their own property’s borders – to exclude whom they choose and admit whom they choose.

    Any government’s number one job is to protect the rights of the individuals who live within its jurisdiction. That includes the rights of those who own buses, rest stops, boardinghouses, farms, and the like to use their property as they see fit, admitting those they choose to admit. Accordingly, would-be immigrants have a right to immigrate as long as they have the invitation of the various property owners they deal with along the way. To block such immigration is to violate the rights of the native-born citizens.

    What about the consequences of free immigration?

    As for its practical consequences, this perspective should reassure those who worry that free immigration would lead to overcrowding. Property rights include the right to exclude. The boardinghouse owner in our example has only so many rooms. When they fill, he may and will turn people away. The farmer needs only so many laborers; when he has all he needs, he may and will turn people away.

    Congestion naturally checks immigration. Word gets back to the immigrants’ home country that there are no more rooms available in that town and no more jobs at the farms. The flow of immigrants will naturally stop.

    One might object that immigrants have no right to use the public roads because they have not paid taxes to build the roads. But that argument also ignores the rights of current citizens. They have paid taxes for the roads to facilitate the business of their lives, including their interactions with others – to drive their buses on, to allow others to rent their rooms, and to get to the jobs they offer. And that includes the riders and renters and employees they’d like to deal with who happen to have been born in other countries.

    In this way of thinking, immigration policy is first and foremost about the property rights and freedom of association of those in the destination country. They have a right to welcome immigrants onto their property, or exclude them from it, as they choose.

    As with most other areas of human affairs, immigration decisions should be made in a decentralized manner by property owners rather than centrally by governments.

  5. Full Debate: Is Immigration a Human Right?

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    Bryan Caplan and Christopher Wellman debate immigration. Is there a human right to immigrate to any country in the world?

    Debate sponsored by IHS, the John Templeton Foundation, and University of San Diego’s Center for Ethics, Economics, and Public Policy.

  6. How immigration gave rise to American pop culture

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    Looking back over the second half of the 20th century, among the observations one can make about American society is that our artistic and entertainment assumptions were increasingly dominated by pop culture as the decades passed. From the grand division of culture into high and low that solidified toward the end of the 1800s, the winner one hundred years later seems unquestionably to have been pop.

    Pop culture as we know it began with the age of industrialization, which for America means the years after the Civil War. Two driving forces allowed popular culture to flourish: one from the supply side and the other from the demand side, both of which were made possible by the free and unregulated society of 19th-century America.

    On the supply side, making possible the constant influx of new entertainment that constitutes pop culture were Industrial Age advances in communication and mass production. The sudden ubiquity of dime novels, Horatio Alger stories, nickelodeon parlors (early movie theaters), and professional baseball all depended on new means of technology and communication and the free market in which they emerged.

    In terms of demand, these same years also saw the first massive immigration to the United States from Eastern and Southern Europe. Most immigrants then spoke a language other than English and brought cultural traditions and customs that set them apart from the bulk of those who were already here. How to transform this increasingly diverse population into a unified American people was not in the least bit clear.

    Folklore fades; pop culture pervades

    The freedom of individuals to associate helped bring about a solution. Far more readily than by centrally directed planning, the natural currents of pop culture form instant communities where none exist. Back in the Gilded Age of the late 19th century,pop culture did this most readily among the children and grandchildren of immigrants.

    They may have had little in common with each other, but they shared an ability to laugh at the silent shorts of the nickelodeon and follow the exploits of the first generation of professional baseball players engaging in a game they themselves could play in the crowded streets and empty lots of New York City, Pittsburgh, and St. Louis.

    As these children (if not their parents) embraced English, they could bond over exciting stories of gunslingers out west. From its beginning, pop culture has always been the interest of the young and has depended to a high degree a free and open society for its existence.

    Before our polyglot world of mass movement and mass immigration, what we know as pop culture didn’t exist. The job it serves now was handled by what we call folklore.

    In homogenous cultural communities, the authority of folklore gives a community the commonalities that form its anchors. It was only with the rise of heterogeneous cultural communities that a common folklore ceased to be able to fulfill its traditional mission and pop culture arose to take its place. The difference between folklore and pop culture, however, rests in the former having an authority in tradition and the other having an appeal rooted in novelty.

    Pop culture vs. traditional culture

    Despite its constructive role of fusing disparate groups of people together, pop culture also grew to play an antagonistic role, particularly toward traditional culture. Authors like Shakespeare, Bunyan, and Swift; composers like Bach and Handel; and painters like Rembrandt and Gainsborough were unquestionably popular and new at one time, but their works evolved over the years into a canon less easily accessible.

    Pop culture, by contrast, is quickly and easily absorbed. In April 1969, American art critic Clement Greenberg criticized pop art for being “too agreeable, too readily pleasing; it doesn’t challenge your taste enough. That’s why it became so popular so quickly.” Such an observation is valid with all pop culture, not just the paintings of artists such as Andy Warhol and Roy Lichtenstein.

    The best art, Greenberg further elaborated, “makes you a little more uncomfortable at first, challenges you more. It doesn’t come that far to meet your taste or meet the established tastes of the market.” Marketability, however, is and always has been a key ingredient in popular culture.

    There’s a complexity here to which lovers of liberty and defenders of tradition have to attend. The problem comes when good elements like liberty and freedom work in a way, abetted by mass marketing, that results in the dismissal of challenging cultural expressions long regarded as essential to those who seek to understand the human condition.

    Pop culture and the tyranny of presentism

    While its specifics may grate on the ears and eyes of parents — and it’s in part designed to do just that — pop culture itself isn’t bad. What is truly detrimental is a growing relativism that denies a difference between pop culture and other more canonical cultural expressions, as well as the loss of the ability to differentiate between levels of significance.

    The greatest risk , increasingly valuing novelty over permanence and making a culture in which there is little expectation of, or regard for, a broad and widely held knowledge of the past.

    A cultural egalitarianism fueled by mass marketing and championed by an ill-informed audience that sees its validity only in its numbers is as much a threat to tradition as any centralized government jealous of a rival locus of authority. As intellectual historian and political scholar Richard Weaver once put it, “A simple expression of majority will is not always a good thing, is not always a final verdict on matters. For that reason, [the conservative] tends to set a great store by traditional usages, and also by formulations such as constitutions, which represent settled opinions and, in a sense, directives.”

    The willingness to accept a little difficulty in understanding a work of art is anathema to pop culture but central to all other kinds of culture. Abandoning that willingness would not only reinforce our tendency to downplay the role of history in what constitutes an education, it would make us increasingly disdainful of the curiosity that might lead to experiencing anything more than what’s popular — and most aggressively marketed — today.

  7. The Constitutional Rights of Noncitizens

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    Immigration restrictionists sometimes claim that noncitizens have no rights under the Constitution, and that the US government is therefore free to deal with them in whatever way it wants. At least as a general rule, this claim is simply false.

    Noncitizens undeniably have a wide range of rights under the Constitution. Indeed, within the borders of the United States, they have most of the same rights as citizens do, and longstanding Supreme Court precedent bans most state laws discriminating against noncitizens. There is little if any serious controversy among experts over this matter.

    The more controversial issue is whether the Constitution provides any protection for noncitizens outside US borders, particularly in regard to immigration issues.

    Rights That Protect Aliens and Citizens Alike

    The First Amendment prevents the government from censoring noncitizens’ speech or suppressing the practice of their religion. The Fourth Amendment protects them against unreasonable searches and seizures. The Fifth Amendment ensures that noncitizens’ property can only be taken by the government for a public use, and only if just compensation is paid.

    Should a noncitizen be charged with a crime, he has exactly the same Fifth and Sixth Amendment procedural rights as a citizen, including the right to a jury trial, the right to counsel, and protection against self-incrimination. If convicted, the Eighth Amendment prevents the government from subjecting aliens to “cruel and unusual punishment” in exactly the same ways as it does with citizens.

    Rights Reserved to Citizens

    The Constitution reserves a few rights for citizens alone. Most notably, the Privileges and Immunities Clause of Article IV, Section 2, and the Privileges or Immunities Clause of the Fourteenth Amendment both protect the “privileges” and “immunities” of US citizens against various types of interference by state governments.

    The Second and Ninth Amendments indicate that the rights they protect are those of “the people.” While the Supreme Court has never addressed this issue, lower courts have disagreed over whether “the people” entitled to the Second Amendment right to keep and bear arms includes noncitizens, especially undocumented immigrants.

    That a few constitutional rights may be specifically reserved to citizens underscores the broader principle that the vast majority are not. There would be no need to specify such a reservation if the Constitution had a default rule limiting rights to citizens.

    In reality, the vast majority of rights outlined in the Constitution are phrased as general limitations on government power, not special protections for a specific class of people — be they citizens or some other group.

    Constitutional Constraints on State Discrimination against Aliens

    Not only does the Constitution grant noncitizens most of the same rights as citizens, but longstanding Supreme Court precedent also forbids many state laws discriminating against aliens. In cases such as Bernal v. Fainter (1984), the court has ruled that laws discriminating on the basis of alienage are subject to “strict scrutiny” — that is, they will be struck down unless the government can prove that they are “narrowly tailored” to the promotion of a “compelling state interest.”

    Under that doctrine, courts have invalidated state laws excluding noncitizens from entering various professions, including becoming lawyers. Bernal, for example, struck down a Texas law preventing non-citizens from becoming notaries public. An important exception to the principle applies to laws excluding aliens from “political functions,” such as voting and holding elected office.

    Some conservatives criticize court decisions restricting discrimination against aliens as left-liberal “judicial activism.” But such decisions have a substantial basis in the Fourteenth Amendment.

    Representative John Bingham, one of the principal framers of the amendment, emphasized that one of the purposes of the amendment was to ensure “that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property.” While the framers were especially concerned with ending discrimination against African-Americans, they also sought to curb growing state discrimination against immigrants.

    State governments are also forbidden to discriminate against immigrants based on national origin. In a recent high-profile decision, a federal court struck down an Indiana policy, enacted by then-governor Mike Pence, that denied state services to Syrian refugees that were made available to refugees from other nations.

    The trial court ruled that this practice was “national origin” discrimination, forbidden by the Fourteenth Amendment. Its decision was later upheld by an appellate court panel that included prominent conservative judges Frank Easterbrook and Diane Sykes (the latter generally considered to be a likely future Republican nominee to the Supreme Court).

    The Pernicious “Plenary Power” Doctrine

    By far, the biggest exception to the courts’ generally favorable attitude toward extending constitutional rights to noncitizens is the so-called “plenary power” doctrine, which gives the federal government broad power to adopt otherwise unconstitutional policies in its treatment of aliens, when it comes to immigration policy.

    Since the late 19th century, the doctrine has been understood as giving Congress very broad power to authorize the exclusion of aliens for almost any reason, including many rationales that would be forbidden in virtually any other context.

    The plenary power doctrine has no basis in the text or original meaning of the Constitution. With a few exceptions noted above, none of the rights protected by the Constitution are textually limited to citizens. And none include a blanket exception for immigration cases.

    The doctrine traces its roots to the highly racist and xenophobic era of the late 19th century. The animating ideology had a close connection to the judicial tolerance of Jim Crow segregation at home, which intensified around the same time. The origins of the plenary power doctrine lie not in the text of the Constitution but in the racial and ethnic prejudice of the same era that gave us Jim Crow and Plessy v. Ferguson.

    Some argue that the plenary power doctrine is sound because aliens have no legal right to enter the United States in the first place; such admission is at the discretion of the US government. Whether the Constitution gives the federal government a general power to restrict immigration is debatable. But even if it does, it does not follow that this authority is exempt from the constitutional limitations that apply to every other exercise of federal government power.

    For example,  few doubt that Congress has the power to give or withhold Social Security benefits. That does not mean it is free to discriminate on the basis of race or religion in doing so, or that it can withhold benefits from individuals who engage in speech critical of the government.

    While would-be recipients have no legal right to Social Security benefits as such (at least none that Congress cannot take away), they do have a right to expect that the government will not allocate benefits in ways that violate constitutional constraints on its authority, including by engaging in prohibited discrimination. There is no good reason why federal power over immigration should be treated any differently.

    The Future of Plenary Power

    It is unlikely that the plenary power doctrine will be fully overturned in the near future. But, as leading immigration law scholars Peter Spiro and Adam Cox have explained, recent Supreme Court decisions suggest that it may not be as robust as it once was and that it might be subject to various constraints.

    The reach of the plenary power doctrine is the main issue in the ongoing litigation over President Donald Trump’s “travel ban,” the executive order barring citizens of several Muslim majority countries from entering the United States. In any context other than immigration, Trump’s order would likely be dead in the water.

    It was clearly motivated by a desire to discriminate against Muslims, as evidenced by Trump’s own statements and those of his advisers, as well as by its laughably weak  security rationale.  Discrimination on the basis of religion is clearly unconstitutional in nearly any other context. The initial order was also vulnerable because it forbade entry even to citizens of the affected countries who had preexisting visas or legal permanent resident status.

    Legal challenges to the initial order won a series of victories in court that soon forced Trump to withdraw it and replace it with a somewhat less egregious version. But the new order  still reflects the discriminatory intent that animated the original and still has a security rationale so transparently weak as to make it implausible that discrimination was not its true purpose.

    So far, two federal trial court decisions have ruled against the revised order, while another has ruled in its favor. The litigation will surely continue, perhaps all the way to the Supreme Court. Whatever ultimately happens, the litigation over the two travel ban orders has shown that the plenary power doctrine is not as firmly established as its most fervent defenders like to think.

    Over time, perhaps courts will further rethink this indefensible exception to the principle that the rights protected by the Constitution are general limits on government power that protect citizens and noncitizens alike.

    With a few exceptions noted above, none of the rights protected by the Constitution are limited to citizens. And none include a blanket exception for immigration cases.

  8. Are Immigration Restrictions Required by Individual Rights?

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    It’s not uncommon to think of immigration restrictions in terms of individuals’ rights of association. In the same way that a private club has the right to select its members, the state has the right to select its residents — or so the thinking goes.

    The problem with this line of reasoning is that immigration restrictions actually curtail that very same right to decide with whom citizens associate, or trade. If we take individual rights seriously, then, we should understand immigration restrictions as rights infringements.

    I believe this must be our starting point in discussing the ethics of immigration restrictions. But I don’t believe this should be our last word.

    When is it justifiable to infringe on individual rights?

    From any reasonable perspective, some rights infringements are justified in the presence of some extraordinary circumstances. We should admit, for example, that those infringements are justified, if necessary, to secure the same values those rights protect under normal circumstances. This is how many of us justify the existence of the state — it’s supposed to protect individual rights. But even the least restrictive state, by its very nature, does infringe on some of our rights.

    Several of the usual concerns regarding immigration don’t seem to be significant enough to justify infringing on individual rights. This, of course, does not mean that we should discount their importance; we must simply weigh the cost of addressing the concerns. For example, we might believe the loss in cultural homogeneity implied by open immigration entails some real costs. Yet the alternative is to constrict people’s freedom to decide where to live and work.

    If we take individuals’ rights seriously, this is a high moral cost to pay.

    Do immigrants threaten free societies?

    But those who take individual rights seriously must surely address one argument in particular. This is the argument that immigration restrictions are justified as a means of securing the sort of liberal institutions that, albeit imperfectly, have been able to prosper in those countries to which individuals want to migrate. The fear is that open immigration would somehow contribute to the erosion of such institutions, and of individual rights as a result. Immigration restrictions would then be justified by appealing to the same fundamental values to which we had appealed in our originally condemnation of them.

    The 19th-century English philosophers Henry Sidgwick made this case. Sidgwick thought that the cosmopolitan ideal was the ideal of the future. As he stated in his 1919 book, The Elements of Politics, the business of the state is “to maintain order over the particular territory that historical causes have appropriated to it, but not in any way to determine who is to inhabit this territory.” But he also thought that under present conditions “a large intermixture of immigrants brought up under different institutions might inevitably introduce corruption and disorder into a previously well-ordered State.”

    In a brief article entitled, “A Two Country Parable,” James Buchanan made a similar argument, noting that “[t]he entry of an immigrant into an ongoing social-political-legal-economic order, with a defined membership, an experienced history, and a set of informal conventions, necessarily modifies the structure of ‘the game’ itself, the complex and ill-understood set of interpersonal and intergroup relationships that generates the pattern of results that are observed by participants.” In other words, because of the fragility of ill-understood parameters which have made some countries relatively free, one can justify restrictions to the entry in an ongoing political community.

    I’ll put aside the question of whether these concerns have a robust empirical basis, and what exactly their implications are for the particularities of immigration policy (for example, whether general restrictions would be justified or whether they would need to apply only against members of particular political communities). Here, I only want to draw attention to an issue that is often overlooked: the importance of the mobility constraint on governments that is forgone by the establishment of immigration restrictions.

    What can bandits can tell us about the relationship between immigrants and the state?

    Mancur Olson’s distinction between “roving” and “stationary” bandits, in his famous “Dictatorship, Democracy, and Development”, is helpful in thinking about this.

    • Lacking the prospect of future interactions with their victims, roving bandits will take everything from them.
    • Stationary bandits, on the other hand, need to take into account how their actions affect the productive decisions of their victims. How much there will be to steal depends on how much income individuals produce. In Olson’s words, the stationary bandit must become “a benefactor to those he robs.”

    So the state is a stationary bandit. Therefore, it levies a tax rate far from 100 percent and provides some minimal security, as well as other public goods.

    Why can’t we ultimately argue for immigration restrictions if we care about individual rights?

    Stationary bandits are clearly preferable to roving bandits. But there’s an even better option: multiple stationary bandits with roving rather than stationary victims. Under this system, victims would not to be victims for long. They would instead become clients whom those bandits must now satisfy rather than rob. Immigration restrictions protect stationary bandits (in this case, different governments) from this option.

    We could then say that it’s the very existence of strict immigration restrictions that currently creates the very need for massive numbers of individuals to migrate away from their homes.

    This is because in the absence of such restrictions, performance declines in governance are kept in check by individuals’ willingness to move. Not everybody might afford the costs of migration, but everybody is protected by those who can. This is the essence of the case made by Buchanan himself in support of federalism.

    Immigration restrictions are thus best seen as a reliable mechanism to reproduce the situation to which we must appeal as a means of justifying those restrictions themselves. In some places, historical contingencies might still produce the sort of political culture and institutional setting that allow individuals to flourish in liberty. Unrestricted freedom of movement might conceivably bring the sort of challenges to those places that Sidgwick and Buchanan imagine. But we need to recognize the high moral cost of addressing those challenges through immigration restrictions: condemning millions to low hopes of securing adequate protections for their individual rights.

  9. Bryan Caplan: Is immigration a basic human right?

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    Editors Note: On March 16th George Mason University Professor of Economics Bryan Caplan debated Washington University Professor of Philosophy Christopher Wellman on the topic, “Is Immigration a Basic Human Right?” Below is Professor Caplan’s opening statement.

    There are many complaints about governments, but the harshest is, “This government grossly violates human rights.”  The background assumption is that human beings have rights that everyone – including governments – is morally obliged to respect.  When looking at the grossest violators – Nazi Germany, the Soviet Union, Maoist China – almost no one denies the validity of the idea of human rights.  But then you have to wonder: Do the governments we know, accept, and even love have clean hands?  Or do they violate human rights, too?

    To answer, we normally apply a simple test: If an individual treated other people the same way the government does, would he clearly be a horrible criminal?  If an individual deliberately kills innocent people, he’s a murderer; if an individual imprisons innocent people, he’s a kidnapper.  A government that does the same violates basic human rights – and it can’t justify its actions by calling innocent people “criminals.”  If someone is peacefully living his life, he’s innocent – whatever the government says.

    What does this have to do with immigration?  Lots.  Since we’re in San Diego, we’ve seen illegal immigrants.  What are the vast majority of them doing?  Working for willing employers.  Renting apartments from willing landlords.  Buying stuff from willing merchants.  Sending money home to their families.  Maybe even sitting next to you in class.  They sure look innocent – even admirable.  But the U.S. government can and does forcibly arrest and exile them to the Third World. Why can’t they all just come legally?  Because exile is the default; they’re all exiled unless the U.S. government makes a rare exception.  This is far less bad than killing or imprisoning them, but it sure looks like a severe human rights violation.  If the U.S. government forbade you to live and work here, wouldn’t that be a severe violation of your human rights?

    You could reasonably object that human rights are not absolute.  While there’s a strong moral presumption against killing, imprisoning, or exiling innocent people, it’s okay to do so if the overall consequences of respecting human rights are clearly awful.  The main problem with this objection is that when social scientists measure the overall consequences of immigration, they’re not clearly awful.  In fact, the overall consequences look totally awesome.  Most notably, standard economic estimates say that letting all the world’s talent flow to wherever it’s most productive would roughly DOUBLE global prosperity.  That’s an extra $75 TRILLION of extra wealth per year.  How is this possible?  Because even the world’s lowest-skill workers produce far more in the First World than they do at home.  Even if all other fears about immigration were bulletproof – which they aren’t – they’re dwarfed by this gargantuan economic gain.  This isn’t trickle-down economics; it’s Niagara Falls economics.

    To effectively defend immigration restrictions, then, saying “Human rights are not absolute” is insufficient.  You need to flatly deny that immigration is a human right – to say that while the illegal immigrants you meet on the street may look innocent, they’re actually guilty as hell.  The most popular argument analogizes illegal immigrants to trespassers.  No one has any right to be here without government permission; it’s our country, so we set the rules.

    The obvious problem with this position is that it justifies a vast range of blatant human rights abuses.  If it’s our country and we set the rules, why can’t we exile citizens, too?  Why can’t we imprison people for saying the wrong thing, practicing the wrong religion, or having kids without government permission?  Saying, “That won’t happen,” dodges the question: If the U.S. government did this to you, would it be violating your human rights or not?

    Prof. Wellman offers a more sophisticated version of this story.  He defends immigration restrictions for “legitimate states” only, on the grounds that immigration restrictions are vital for “freedom of association.”  Unfortunately, we have two conflicting freedoms of association.  I want to be free to associate with foreigners; lots of foreigners want to associate with me.  Immigration restrictions deny us this freedom in the name of all the Americans who don’t want my associates breathing American air.

    Who should prevail?  In his work, Wellman concedes a crucial premise, freely admitting that the popular notion that we all consent to government is a “fiction,” and that “the coercion states invariably employ is nonconsensual and, as such, is extremely difficult to justify.”  We don’t really face a choice between two freedoms of association, but between freedom for real associations we choose to join and freedom for fictional “associations” we’re forced to join.  Unless the overall consequences are clearly awful, the fictional ones should lose.  Freedom of association is only for free associations.

    My critics often tease me, “Should everyone on Earth be free to immigrate into Bryan’s house?”  Their point: Treating immigration as a human right is utopian nonsense.  My reply: There are three competing moral positions on immigration.

    1. Foreigners should be free to live in my house even if I don’t consent – a view held by almost no one.
    2. Foreigners should be free to live in my house if I consent – my view.
    3. Foreigners shouldn’t be free to live in my house even if I do consent – the standard view I’m criticizing.

    Far from being utopian, saying “Immigration is a human right” is just the moderate, common-sense position that when natives and foreigners voluntarily interact, strangers are morally obliged to leave them alone unless the overall consequences are clearly awful.  Even if the stranger happens to be the government – and the government happens to be popular.

    This was originally published at Econlog.

  10. Supposed FBI investigations into refugees shouldn’t scare you

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    This past Monday, President Trump released a new executive order shutting down the refugee program for 120 days and banning immigration from six majority-Muslim countries for 90 days. President Trump attempted to justify these changes by stating in part that:

    The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.

    The government has refused to provide any additional details about these cases, but an investigation should not be seen as implying guilt. Almost all FBI terrorism investigations do not end with a terrorism conviction. Indeed, the numbers predict that of these 300 refugee investigations, only 1 will turn into a terrorism conviction and that conviction will not be for planning an attack against the United States. This claim about the FBI investigating refugees has turned out to be a groundless smear in the past, and history has shown that refugees have been less likely than others to commit acts of terrorism against the United States.

    These 300 represent less than 0.009 percent of all refugees admitted since 1975. As the Cato Institute’s recent report found, only 20 refugees from 1975 to 2015 have attempted, planned, or carried out a terrorist attack inside the United States. Only 3 carried out a deadly terrorist attack, and all of those were before 1980. During the 40 years from 1975 to 2015, the annual risk of death by a refugee terrorist to a U.S. resident was 1 in 3.64 billion. This makes them about 1,000 times less likely to kill a U.S. resident in a terrorist attack than other foreign-born people.

    Unfortunately, this type of baseless fearmongering about FBI investigations into refugees is not new. The FBI told ABC News in 2013 that it was investigating “dozens” of refugees as terrorists. In the 26 months after the FBI made the claim, the agency arrested and convicted 31 individuals for “terrorism-related” offenses. Of these, a majority were U.S.-born citizens. Another 4 convictions were not even for terrorism offenses. In the end, the Bureau only arrested and put away for terrorism offenses 9 foreign-born residents total after it claimed “dozens” of open cases against refugees specifically. None of these individuals were planning attacks inside the United States.

    So how often do FBI national security investigations actually turn into convictions?

    According to the New York Times in 2016, the Bureau has averaged “7,000 to 10,000 preliminary or full investigations involving international terrorism annually in recent years.” This appears to contrast with Reuters, which reported this week that the 300 refugee investigations were part of 1,000 “counterterrorism investigations” into persons tied to “Islamic State or individuals inspired by the militant group.” Similarly, FBI Director James Comey said in May 2016 that there were “north of a thousand cases” that they were investigating of U.S. residents radicalized by the Islamic State online.

    The best explanation that I see for this difference is that the Comey/Reuters number refers to a narrower subset of investigations involving the Islamic State and, more importantly, only reflects a snapshot in time. At any particular moment, there may be 1,000 or so investigations open, but there are between 7,000 and 10,000 investigations for the entire year.

    This means that very few FBI investigations end in a terrorism conviction. In the 5 years from 2010 to 2014, the entire United States government averaged just 27 terrorism convictions per year. Taking the middle of the 7,000 to 10,000 range for the number of new FBI investigations (8,500) would mean that only about 0.3 percent of all terrorism investigations end in terrorism convictions.*

    If these individuals are involved with terrorism, it is very unlikely that they are attempting to harm the United States as opposed to supporting terror groups abroad. Less than 5 people per year were convicted of terrorism offenses in which they were targeting the United States in the five years from 2010 to 2014. This appears to be true today as well. Director Comey said in May 2016 that his main concern was people seeking to join the Islamic State overseas. This means that only 0.05 percent of all investigations end in the conviction of a person who was attempting terrorism in the United States.

    Based on these percentages, we can predict that only 1 in 300 of these investigations will turn into a terrorism conviction and that it will not involve a domestic terror plot.

    The FBI should continue to investigate people who it has reason to believe are involved in terrorism, but it is incorrect to assume that an investigation means that the person is guilty of a crime or even likely to be guilty of a crime. It is even more incorrect to jump to the conclusion that they pose a threat to anyone in the United States. The fact remains that refugees are less likely than others to commit acts of terrorism, and these new investigations do not change that fact.

    *In the less likely scenario where the FBI opens only 1,000 terrorism investigations annually, 2.7 percent would end in terrorism convictions and 0.5 percent would end with convictions for an offense targeting the U.S. These numbers would predict that of these 300 refugees, only 8 will be convicted of a terrorism offense. Of these, only 1 will have planned an attack targeting people inside the United States.

    This piece was originally published at Cato at Liberty.

  11. The classical liberal case against nationalist immigration restrictions

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    If any part of liberalism needs revitalizing, it’s the case for liberalizing immigration.

    Nationalists on the left and right argue that easing immigration restrictions would make Americans worse off. During the Democratic primaries, Bernie Sanders criticized open borders as a “right-wing proposal” that would “make everybody in America poorer.” And of course Donald Trump is calling for “an impenetrable physical wall on the southern border” to protect “the jobs, wages and security of the American people.” He has even floated the idea of an “ideological screening test” to ensure that the U.S. only admits those “who share our values and respect our people.” His executive orders banning citizens of five Muslim-majority countries from even setting foot in the U.S. seems to reflect this idea, and have met judicial resistance on the ironic grounds that they violate the values of the American people embodied in the constitutional guarantee of religion liberty.

    Trump’s stance on immigration exemplifies a broader cultural and economic nationalism. His chief strategist, Steve Bannon, has argued that capitalism and “the underpinnings of the Judeo-Christian west” are in crisis. According to this worldview, we have to build a wall around the American economy and culture as a matter of self-preservation. Congressman Steve King expressed this view recently in a controversial tweet:

    Trump, Bannon, and conservatives like King are wrong. We have overwhelming economic and cultural reasons to move toward a more open country. Indeed, some of Trump’s and Bannon’s own (professed) principles push in that direction. For instance, both tout lean government and robust capitalism. Trump says that “people flourish under a minimum government burden.” Bannon claims that “We are strong capitalists. And we believe in the benefits of capitalism. And, particularly, the harder-nosed the capitalism, the better.

    Yet restrictive immigration controls empower the state to suppress market competition and dictate how people may spend their money and allocate their labor. This is the opposite of capitalism. Literally.

    Immigration Restrictions Are an Attack on Economic Liberty

    Small-government, hard-nosed capitalism is flatly inconsistent with outlawing the buying and selling of labor. It shouldn’t matter where the laborer is born.

    For example, I’m a fan of the Philadelphia 76ers (unfortunately) and I’m eager to buy tickets to watch their rookie Ben Simmons play. And I’m sure that Simmons is equally eager to take my money. This is as capitalist as it gets: voluntary exchange for mutual benefit. Sure, Simmons is Australian, but so what? The free exchange of goods and services doesn’t suddenly become a bad idea because the provider moved across a border. Simmons plays in Philadelphia because it makes him better off, and fans pay to watch Simmons in Philadelphia because it makes them better off. That Simmons flew across an ocean to get there changes nothing of ethical or economic significance.

    Restricting Immigration Hurts the Economy and Is a Bad Way to Help Poorer Workers

    Maybe this is an unfair example. Simmons competes for a job with other millionaires, whereas Trump’s stated concern is immigration’s impact on poorer American workers. When immigrants enter the United States, they increase the supply of low-skilled labor and thus drive down the wages of low-skilled American workers.

    I’ll note up front that the extent to which immigrants directly compete with American workers is probably oversold. Immigrants tend to have different skill sets and job preferences than native-born Americans;  as such, they tend to complement rather than displace domestic workers. For instance, low-skilled immigrants are overrepresented in construction and agricultural work and underrepresented in government, education, and social services. As you’d expect, immigrants are less familiar with local languages and customs than native-born workers, giving the latter a leg up in competitions for jobs that require these skills.  Recent studies suggest that immigration even results in a small long-term increase in the wages of native-born workers.

    Still, it’s important to acknowledge the possibility that increased immigration will be bad for certain native-born American workers. In particular, those lower-skilled workers who do directly compete with immigrant labor can expect to see their wages drop by roughly 5%. But restricting immigration is the wrong way to solve this problem.

    Liberal Immigration Saves Millions from Desperate Poverty

    First, the benefits of liberalized immigration to the global poor are so overwhelming that it is flatly unethical to withhold them. Second, restricting immigration is a comparatively inefficient method of benefiting low-wage American workers.

    Philosopher Peter Singer explains that the world’s poorest people suffer from a deprivation far graver than anything experienced by even poor Americans:

    In wealthy societies, most poverty is relative. People feel poor because many of the good things they see advertised on television are beyond their budget — but they do have a television. In the United States, 97 percent of those classified by the Census Bureau as poor own a color TV. Three quarters of them own a car. Three quarters of them have air conditioning. Three quarters of them have a VCR or DVD player. All have access to health care. I am not quoting these figures in order to deny that the poor in the United States face genuine difficulties. Nevertheless, for most, these difficulties are of a different order than those of the world’s poorest people. The 1.4 billion people living in extreme poverty are poor by an absolute standard tied to the most basic human needs. They are likely to be hungry for at least part of each year. Even if they can get enough food to fill their stomachs, they will probably be malnourished because their diet lacks essential nutrients. In children, malnutrition stunts growth and can cause permanent brain damage. The poor may not be able to afford to send their children to school. Even minimal health care services are usually beyond their means.

    Only one policy has been shown to effectively bring the global poor up to the living standards of the global rich: allow them to move across borders, toward economic opportunity.

    The economist Michael Clemens writes, “Migrants from developing countries to the United States typically raise their real living standards by hundreds of percent, and by over 1,000 percent for the poorest people from the poorest countries. No other development policy realized within developing countries is able to generate anything close to this degree of convergence [between the earnings of people born in poor countries and those born in rich countries].”

    If someone is too poor to afford enough food to avert brain damage, it is morally indefensible to deprive them of the opportunity to increase their income by over 1,000%, especially when the cost of doing so is making someone hundreds of times richer about 5% poorer. That’s like cutting in front of someone dying of thirst because you want that last bottle of Aquafina to brush your teeth.

    Safety Nets Are a Better Way to Help Poorer Americans

    In any case, there are better ways to protect the economic well-being of poorer Americans than restricting immigration. A free market solution to a drop in wages or employment isn’t heavy-handed regulation of the labor market. Instead, let firms compete to figure out the most efficient ways of doing business and then directly compensate those workers who are made worse off. The compensation could take the form of government safety nets like unemployment benefits or the earned income tax credit.

    Trump’s first pick for labor secretary, Andy Puzder, is a fast-food executive who favors automation to keep production costs down. When McDonald’s installs automated kiosks, it worsens the labor market position of low-skilled American workers. But it also lowers the costs of a Big Mac, leaving consumers with more money to spend on other goods and services produced by other workers. Immigration has a similar economic effect. Insofar as immigration drives down production costs, Americans will have more disposable income to spend at Starbucks, where they’ll probably be served by a native-born barista with knowledge of the local language and customs.

    What’s more, the economic gains from immigration can be taxed to fund the safety net for displaced workers.

    Immigration Doesn’t Threaten American Values. Cultural Tests Do.

    But what if liberalizing immigration kills the goose that lays the golden egg? As Bannon might put it, we have to compromise pure capitalist principles in order to save the “the underpinnings of the Judeo-Christian west” that, in his view, make capitalism possible.

    One reason to be skeptical of this position is that American culture has allegedly been under siege by immigrants for decades (if not centuries), and the worry never seems to pan out.

    In fact, despite Bannon’s talk of the “Judeo-Christian west,” Americans haven’t always been keen on Jewish immigration. For instance, a 1940 proposal to resettle Jewish refugees in Alaska met with resistance in Congress because of the familiar-sounding fear that “these foreigners cannot be assimilated in Alaska, and will constitute a threat to our American civilization.” And in the 19th century, “many native-born Americans regarded Catholic immigrants as an ideological and racial threat.”

    Those worries were clearly unfounded. And they’re equally unfounded today. Studies of today’s immigrants find that they too tend to adopt liberal political values.

    But suppose, for argument’s sake, that Bannon is right and the United States is facing a cultural crisis. There’s a bedrock moral issue at stake: how does a liberal society like the United States confront cultural and ideological challenges? Does it enlist the power of the state to forcibly exclude dissenting viewpoints or does it engage them?

    Historically at least, it’s been the latter. Dissent from liberal values needn’t come from across the border. We permit Nazis to march in Illinois and the Westboro Baptist Church to picket soldiers’ funerals. These are not groups “who share our values and respect our people.” Nevertheless, they’re free to speak, protest, and assemble within our borders. A command-and-control culture is as contrary to American values as a command-and-control economy.  It’s not the state’s job to regulate away bad ideas any more than it’s the state’s job to regulate away cassette tapes and Blockbuster videos. The American way is to defeat bad ideas in what Oliver Wendell Holmes called “the competition of the market.”

    Indeed, if the nationalist concern is to preserve “our values,” then I see no good reason to ignore homegrown cultural threats. If we’re going to start a program of ideological screening, why do it halfway? Let’s implement an ideological screening test for books to ensure that they contain only content that “shares our values and respects our people.” Parents influence their children’s values, so maybe you should be required to take the test before the state lets you become a parent. Presumably journalists, teachers, religious leaders, and voters will all need to be screened before they can get to work, too. After all, these people are at least as capable as immigrants of disrupting American culture.

    Yet we find the prospect of these ideological screening tests chilling. A liberal society worthy of the name refuses on principle to take illiberal means to liberal ends. And this means resisting the call to use armed guards, razor wire, and religious profiling to stop peaceful people from working toward a better life in our country.

    This piece was originally published at the Niskanen Center.