This is thoughtful and thorough as always, and makes a reasonable case. A couple of things I can't help but point out, as probably one of the more anti-restrictionist/open-borders-ish people in your readership:
First, while your point is well taken about the difficult political economy of the libertarian "build a wall around the welfare state" strategy, failure to do this leads to a rather perverse result. Almost certainly most unauthorized immigrants would prefer being denied benefits to being deported, and it would almost certainly also be a better fiscal deal for citizens to deny them benefits than to deport them. So deporting people to avoid incurring their welfare-state costs hurts everybody, just so we citizens can... do what? The best explanation I can come up with is that citizens feel less bad about denying deported immigrants benefits because they are now off "our territory" and thus out of sight, out of mind. Which may indeed be a common mindset, but seems obviously dumb and self-sabotaging to anyone more cosmopolitanly minded.
Second, there are moral limits (as well as constitutional limits) to what majorities can justly enact, and these limits extend beyond the requirements of due process. Take, for example, the Chinese Exclusion Act. I would hope most of us see today that that act was not just imprudent but wicked; that defying and subverting it would have been entirely morally justified, and participating in its enforcement monstrously unjust, even though it was a duly democratically enacted law on the books at the time, and even if its enforcement had been accompanied by scrupulous due process protections of the kind you rightly insist on.
Well, on the cosmopolitan view, most modern restrictions on unauthorized entry are fundamentally no more morally justifiable than the Chinese Exclusion Act, because they rest on similarly irrational and immoral criteria. If you unpack where citizenship typically comes from, it is based on things just as capricious and unrelated to legitimate human rights claims as skin color. And whatever the UDHR may say, it is intuitively clear to cosmopolitans that people do in fact have at least a strong presumptive right to freedom of movement to the country of their choice: a presumption that can legitimately rebutted but only with a good individualized reason. Being a member of an actual invading army is perhaps the most canonically legitimate reason; having been convicted of a violent crime, or carrying a contagious disease, is nearly as obviously legitimate. Being a welfare dependent may even be a good enough reason. But simply having crossed the border without authorization is not, because such a crossing does not by itself harm anyone; on the cosmopolitan view democratic electorates do not, in fact, have the sovereign moral right to make arbitrary and capricious decisions about who may enter "their" borders; and most denials of that authorization are arbitrary and capricious on their face.
Again, I recognize this is a deeply unpopular view and I don't expect any politician to advocate for it anytime soon. It's good to be realistic about what's politically feasible and what will only cause backlash if you try to implement it. But that's a different thing from arguing that yes, actually, democratic electorates are justified in wanting people deported who pose no actual threat and have done nothing actually wrong, just because the Law Says So.
Thanks, Nicholas, for the careful read! These are all fair points, so let me take them in order.
On the first: I agree that letting people migrate temporarily with few rights and benefits would benefit almost everyone involved, and Bryan Caplan has been making that case for years. It just does not seem politically feasible in most liberal democracies. Part of it is exactly the out-of-sight, out-of-mind dynamic you describe. But another part, which I have written about before, is that many pro-immigration advocates consider rights-light temporary migration an affront to human dignity, usually without comparing it to the status quo the migrants themselves are choosing to leave. So the obstacle here comes at least as much from the pro-immigration side as from the restrictionists.
On the Chinese Exclusion Act, I think I'd agree that defying it would have been justified. But it also comes from an era that failed on racial and gender equality across the board. So I wonder whether you think there is a recent immigration law, democratically enacted in a rights-respecting era, that you would say no good person could enforce in good conscience?
On citizenship, I actually agree that it is something like an ethnic category globalized. The advantage I see in it is that, in the vast majority of cases, it is still attainable somehow, unlike most other ethnic categories. And I think we both agree that a world where actually legal immigration is absolutely boring, and most people can legally migrate the way they cross the border between Germany and France, or between Canada and the US before 9/11, would be a much better world than what we have now.
Another great article, sir. I particularly liked this bit in the Obama related section:
"Prioritizing serious offenders is correct triage, and I share the revulsion at what replaced it. But notice what the premise implies if you take it as a principle rather than a priority: that violating immigration law as such may never, even after a full process, carry the consequence the law prescribes. Every legal system runs on discretion, but a categorical bar on enforcement essentially repeals the law it claims to soften."
A lot of parallels could be drawn to other laws, selectively or capriciously enforced. I really do hope people read the whole thing and take away the wisdom of the message.
Immigration can be a social good, but presuming that it's a right which can't be abridged is entirely the wrong way to go about it.
I'm grateful for the author for writing this, and I sure hope that some liberals and progressives read it and take it seriously.
This was one of the many, many issues that helped shove me to the right-wing over the years (along with crime, for which very similar arguments can be made): realizing with horror that progressives really didn't care to do the difficult work of governance whenever it entailed hurting people's feelings or making someone feel bad, and that they preferred living in a kind of fantasy world to dealing with real issues and real trade-offs.
Accepting the argument here seems, to me, like the absolute minimum that liberals would have to do, to be taken seriously on immigration. Let's hope it happens!
A thing insufficiently appreciated here is the role of absolute cultural contempt for Americans who want the law enforced because of patriotism and pride of citizenship. In my observation there are many people who do believe that law should be enforced, but who will nevertheless object to all attempts to actually do so because they don’t want to be (or look) Like Them.
Very good essay. I think Theodore Roosevelt’s speech (published as “Americanism”) to the Knights of Columbus says it eloquently - the legacy of liberty and self-government is an inheritance passed down generationally, which old stock Americans and recent immigrants must make a commitment to preserve. I also think that a country dedicated to liberal individualism cannot stand without a God and Country element. We love our country not because it is the best country, but because it is ours.
The hypothetical about a flawless asylum process that fails to find any justification for asylum still isn't a silver bullet. In this case, the legal system has done a ton of work on behalf of the individual and that is valuable in and of itself to allow the person to make an informed decision.
Furthermore, it is worthwhile to conduct these legal processes because in aggregate, they tell us important information about the practical effects of specific policies. If we deem too many people are granted preliminary asylum and later found not to have it, then we should adjust our preliminary asylum policy, not accept that deportation is a necessary evil.
I believe in the realist way of thinking, rather than idealism. Realism says: what will happen if we do X and of we do Y.
In Sweden it used to be very hard to deport. Eventually this led to a backlash, especially the difficulty they had in deporting criminals, and now we've had the Sweden Democrats in government for the past four years, to correct this problem.
But, deporting too many also leads to a backlash. Especially with media being prone to sob-stories of the poor little boy who will be departed to a country he has never been to.
I think if we just focused on deporting the criminals and the ones who clearly are bad for our country, a lot of the problems would be solved.
The message a right-wing politician should have is "this guy has over the last 10 years been convicted of 50 crimes. Why do you want him here?" And not "why deport this hard working tax paying person ?". The left-wing will always win the latter argument, and then the election, as that's how democracies work.
I mean, most people don't really feel strongly in their hearts that we need to deport those who work and contribute to society. Regardless if they are right-wing or left-wing. (I wouldn't be surprised if many conservatives would rather deport the far-left cry-baby activists who never had a real job ouside of their sociology studies)
Yep, there is certainly much nuance to how to deport people better. it looks like Sweden can learn some from the US since we’ve been through the cycles of underenforcement and overenforcement quite a bit over the last few decades here.
I fully admit I haven't read it in its entirety, but I want to point out the thing about duldungen:
In many cases, those are also given when someone doesn't fulfill the requirements for the (admittedly multiple different ones) definitions of asylum, but the country from which they came doesn't cooperate or isnt secure for the person in question.
One thing we have to consider is that Deportation is inherently dependent on other parts outside of our control to function correctly, and if that isn't the case, than the system breaks down immediately.
Which is why I would actually abolish the category all together, because it just isn't pragmatic at all. Either you find a way to enforce your will immediately, or you accept that this just won't work out the way you want and make the best out of the situation.
As for the AfD, I genuinely cannot say what exactly causes its upsurge right now, because Merz actually is already a lot more isolationist than the Ampel, but the afd in my opinion could now be finished by a Verbotsverfahren. The last one against the NPD failed because she was already too irrelevant to be a threat, which is not the case for the AfD. And quite frankly, I bind the voters just as much to the Grundgesetz and humanitarian values as my politicians. I am sick of it.
Thanks, Arko. My piece actually agrees with much of this, and I mention that destination countries that won't cooperate are the top reason for stalling removals.
But a rule being hard to enforce is different from it being optional. Third-country agreements are possible, and not all of them necessarily violate international law. As for abolishing the Duldung, my answer would probably be to aim at faster removals where return is possible and some kind of compromise status where it never will be. Basically, anything but permanent toleration as the default.
This is thoughtful and thorough as always, and makes a reasonable case. A couple of things I can't help but point out, as probably one of the more anti-restrictionist/open-borders-ish people in your readership:
First, while your point is well taken about the difficult political economy of the libertarian "build a wall around the welfare state" strategy, failure to do this leads to a rather perverse result. Almost certainly most unauthorized immigrants would prefer being denied benefits to being deported, and it would almost certainly also be a better fiscal deal for citizens to deny them benefits than to deport them. So deporting people to avoid incurring their welfare-state costs hurts everybody, just so we citizens can... do what? The best explanation I can come up with is that citizens feel less bad about denying deported immigrants benefits because they are now off "our territory" and thus out of sight, out of mind. Which may indeed be a common mindset, but seems obviously dumb and self-sabotaging to anyone more cosmopolitanly minded.
Second, there are moral limits (as well as constitutional limits) to what majorities can justly enact, and these limits extend beyond the requirements of due process. Take, for example, the Chinese Exclusion Act. I would hope most of us see today that that act was not just imprudent but wicked; that defying and subverting it would have been entirely morally justified, and participating in its enforcement monstrously unjust, even though it was a duly democratically enacted law on the books at the time, and even if its enforcement had been accompanied by scrupulous due process protections of the kind you rightly insist on.
Well, on the cosmopolitan view, most modern restrictions on unauthorized entry are fundamentally no more morally justifiable than the Chinese Exclusion Act, because they rest on similarly irrational and immoral criteria. If you unpack where citizenship typically comes from, it is based on things just as capricious and unrelated to legitimate human rights claims as skin color. And whatever the UDHR may say, it is intuitively clear to cosmopolitans that people do in fact have at least a strong presumptive right to freedom of movement to the country of their choice: a presumption that can legitimately rebutted but only with a good individualized reason. Being a member of an actual invading army is perhaps the most canonically legitimate reason; having been convicted of a violent crime, or carrying a contagious disease, is nearly as obviously legitimate. Being a welfare dependent may even be a good enough reason. But simply having crossed the border without authorization is not, because such a crossing does not by itself harm anyone; on the cosmopolitan view democratic electorates do not, in fact, have the sovereign moral right to make arbitrary and capricious decisions about who may enter "their" borders; and most denials of that authorization are arbitrary and capricious on their face.
Again, I recognize this is a deeply unpopular view and I don't expect any politician to advocate for it anytime soon. It's good to be realistic about what's politically feasible and what will only cause backlash if you try to implement it. But that's a different thing from arguing that yes, actually, democratic electorates are justified in wanting people deported who pose no actual threat and have done nothing actually wrong, just because the Law Says So.
Thanks, Nicholas, for the careful read! These are all fair points, so let me take them in order.
On the first: I agree that letting people migrate temporarily with few rights and benefits would benefit almost everyone involved, and Bryan Caplan has been making that case for years. It just does not seem politically feasible in most liberal democracies. Part of it is exactly the out-of-sight, out-of-mind dynamic you describe. But another part, which I have written about before, is that many pro-immigration advocates consider rights-light temporary migration an affront to human dignity, usually without comparing it to the status quo the migrants themselves are choosing to leave. So the obstacle here comes at least as much from the pro-immigration side as from the restrictionists.
On the Chinese Exclusion Act, I think I'd agree that defying it would have been justified. But it also comes from an era that failed on racial and gender equality across the board. So I wonder whether you think there is a recent immigration law, democratically enacted in a rights-respecting era, that you would say no good person could enforce in good conscience?
On citizenship, I actually agree that it is something like an ethnic category globalized. The advantage I see in it is that, in the vast majority of cases, it is still attainable somehow, unlike most other ethnic categories. And I think we both agree that a world where actually legal immigration is absolutely boring, and most people can legally migrate the way they cross the border between Germany and France, or between Canada and the US before 9/11, would be a much better world than what we have now.
Another great article, sir. I particularly liked this bit in the Obama related section:
"Prioritizing serious offenders is correct triage, and I share the revulsion at what replaced it. But notice what the premise implies if you take it as a principle rather than a priority: that violating immigration law as such may never, even after a full process, carry the consequence the law prescribes. Every legal system runs on discretion, but a categorical bar on enforcement essentially repeals the law it claims to soften."
A lot of parallels could be drawn to other laws, selectively or capriciously enforced. I really do hope people read the whole thing and take away the wisdom of the message.
Immigration can be a social good, but presuming that it's a right which can't be abridged is entirely the wrong way to go about it.
Thanks, Quinn. My quest for pointing out obvious things that somehow still read provocative to some goes on :)
I'm grateful for the author for writing this, and I sure hope that some liberals and progressives read it and take it seriously.
This was one of the many, many issues that helped shove me to the right-wing over the years (along with crime, for which very similar arguments can be made): realizing with horror that progressives really didn't care to do the difficult work of governance whenever it entailed hurting people's feelings or making someone feel bad, and that they preferred living in a kind of fantasy world to dealing with real issues and real trade-offs.
Accepting the argument here seems, to me, like the absolute minimum that liberals would have to do, to be taken seriously on immigration. Let's hope it happens!
A thing insufficiently appreciated here is the role of absolute cultural contempt for Americans who want the law enforced because of patriotism and pride of citizenship. In my observation there are many people who do believe that law should be enforced, but who will nevertheless object to all attempts to actually do so because they don’t want to be (or look) Like Them.
Thanks, this is a good point. I did talk quite a bit about this in my previous essay if you haven’t seen it yet: https://www.popularbydesign.org/p/why-us-nationalism-is-essential-after
Very good essay. I think Theodore Roosevelt’s speech (published as “Americanism”) to the Knights of Columbus says it eloquently - the legacy of liberty and self-government is an inheritance passed down generationally, which old stock Americans and recent immigrants must make a commitment to preserve. I also think that a country dedicated to liberal individualism cannot stand without a God and Country element. We love our country not because it is the best country, but because it is ours.
The hypothetical about a flawless asylum process that fails to find any justification for asylum still isn't a silver bullet. In this case, the legal system has done a ton of work on behalf of the individual and that is valuable in and of itself to allow the person to make an informed decision.
Furthermore, it is worthwhile to conduct these legal processes because in aggregate, they tell us important information about the practical effects of specific policies. If we deem too many people are granted preliminary asylum and later found not to have it, then we should adjust our preliminary asylum policy, not accept that deportation is a necessary evil.
Not an easy question.
I believe in the realist way of thinking, rather than idealism. Realism says: what will happen if we do X and of we do Y.
In Sweden it used to be very hard to deport. Eventually this led to a backlash, especially the difficulty they had in deporting criminals, and now we've had the Sweden Democrats in government for the past four years, to correct this problem.
But, deporting too many also leads to a backlash. Especially with media being prone to sob-stories of the poor little boy who will be departed to a country he has never been to.
I think if we just focused on deporting the criminals and the ones who clearly are bad for our country, a lot of the problems would be solved.
The message a right-wing politician should have is "this guy has over the last 10 years been convicted of 50 crimes. Why do you want him here?" And not "why deport this hard working tax paying person ?". The left-wing will always win the latter argument, and then the election, as that's how democracies work.
I mean, most people don't really feel strongly in their hearts that we need to deport those who work and contribute to society. Regardless if they are right-wing or left-wing. (I wouldn't be surprised if many conservatives would rather deport the far-left cry-baby activists who never had a real job ouside of their sociology studies)
Yep, there is certainly much nuance to how to deport people better. it looks like Sweden can learn some from the US since we’ve been through the cycles of underenforcement and overenforcement quite a bit over the last few decades here.
I fully admit I haven't read it in its entirety, but I want to point out the thing about duldungen:
In many cases, those are also given when someone doesn't fulfill the requirements for the (admittedly multiple different ones) definitions of asylum, but the country from which they came doesn't cooperate or isnt secure for the person in question.
One thing we have to consider is that Deportation is inherently dependent on other parts outside of our control to function correctly, and if that isn't the case, than the system breaks down immediately.
Which is why I would actually abolish the category all together, because it just isn't pragmatic at all. Either you find a way to enforce your will immediately, or you accept that this just won't work out the way you want and make the best out of the situation.
As for the AfD, I genuinely cannot say what exactly causes its upsurge right now, because Merz actually is already a lot more isolationist than the Ampel, but the afd in my opinion could now be finished by a Verbotsverfahren. The last one against the NPD failed because she was already too irrelevant to be a threat, which is not the case for the AfD. And quite frankly, I bind the voters just as much to the Grundgesetz and humanitarian values as my politicians. I am sick of it.
Thanks, Arko. My piece actually agrees with much of this, and I mention that destination countries that won't cooperate are the top reason for stalling removals.
But a rule being hard to enforce is different from it being optional. Third-country agreements are possible, and not all of them necessarily violate international law. As for abolishing the Duldung, my answer would probably be to aim at faster removals where return is possible and some kind of compromise status where it never will be. Basically, anything but permanent toleration as the default.