The traditional libertarian position, the position I argued for in my first book, is support for open borders. That was also the traditional American policy. For the first century of the country’s history, anyone who could get here was welcome to come. Limits on Chinese immigration were imposed in the late nineteenth century but broader restrictions only came in in the nineteen-twenties and did not, at the time, apply to immigrants from other parts of the New World.
Murray Rothbard switched his position from opposing restrictions on immigration to supporting them as part of his adoption of a paleolibertarian strategy of alliance with the right, followed by Hans Hoppe and others. In trying to understand their argument, I have used two sources, an article by Hoppe and a webbed debate between Dave Smith, a prominent figure in the libertarian party and the Mises Caucus that currently controls it, and Spike Cohen, the most recent vice presidential nominee of the LP. Cohen supported open borders, Smith opposed them, using arguments largely borrowed from Hoppe.
The argument against open borders follows three related lines. The first starts with the idea that in the ideal libertarian society all property would be private and an individual, firm, or voluntary community would be free to exclude or admit anyone. Since what we actually have is a society in which much property belongs to government, the nearest we can come to that is having the government control who can come. Since, Smith argues, a considerable majority of the population opposes open borders, the government should restrict immigration on their behalf.
The problem with that argument is that, with no restrictions on immigration, individual employers are still free to employ or not employ immigrants, individual property owners to sell or not sell to them, landlords to rent or not to rent to them. In the society as it now exists transactions between current Americans and new immigrants are voluntary, just as they would be in a fully libertarian society. Government restrictions on immigration do what private restrictions in a stateless society could not do, prevent other people from interacting with immigrants.
That brings us to the second line of argument, that in America as it now is, some of the interactions with immigrants will be involuntary. Immigrants will collect welfare payments and send their children to public schools paid for by the taxpayers. Anti-discrimination law might force employers to hire immigrants, landlords to rent to them, even if they didn’t want to. Immigrant voters, if there were enough of them, could vote to tax other people and spend the money on themselves.
Open borders do not imply instant citizenship. While there were no restrictions on immigration in the early history of the U.S. there were restrictions on naturalization. Such restrictions could be retained in an open borders system; libertarian theory does not imply that everyone who comes can vote. Citizenship is not a protected category under current non-discrimination law, so those laws would not prevent employers or landlords who wanted to refuse transactions with some or all immigrants from doing so. Carrying the argument a little further, welfare law could exclude non-citizens, although if it did it would be only just to also exclude them from having to pay the taxes that funded welfare. So far as the public schools are concerned, libertarians, at least the same ones who argue for immigration restrictions, support decentralization. A legal regime with open borders could give every school district the option of serving or not serving non-citizen immigrants. Again, justice suggests that, if a school district rejects the children of non-citizens, the taxes that fund the schools, including property taxes on property they occupy, should not be owed by the parents or their landlords. That would come as close to mimicking what would happen in a stateless libertarian society, where all schools were private, as is practical in the existing system.
Hoppe’s proposal along these lines was that any immigrant
should be allowed in if a citizen is willing to sponsor him, where the sponsor
would then be responsible for any costs the immigrant imposed on others, paying
fines for any crimes he committed, damage payments for any torts, presumably
also paying the cost of sending the immigrant’s children to a public school.
The argument, presumably, is that the sponsor, by letting the immigrant in, is
an indirect cause of all such costs. It is not an absurd argument, but the
notion of indirect liability that it depends on has implications that I do not
think either Hoppe or his supporters would accept. If I sell you a gun, I am an
indirect cause of any crimes you commit with it. Should I be permitted to do so
only if I agree to be liable for the cost of such crimes? If I sell you a car …
. The normal legal rule in a free society is that individuals are responsible
for their own offenses. There is no obvious reason why the rule for immigrants should be different.
Hoppe’s proposal also makes little sense in other ways. Unless he intends immigrants to function like slaves or indentured servants, working for a single employer or those he lends them out to, they will be engaged, like other people, in a multitude of voluntary transactions with lots of different people. It makes no sense for all of those transactions to hinge on the permission of a single sponsor, who could presumably withdraw that permission any time he chose or, if he cannot, is liable for acts over which he has no control.
The third line of argument is that, as long as some property is owned by the government, the government is entitled to control its use. As Dave Smith points out, an adult man does not have the right to go into the girls' room of a public school; government property is not and should not be a commons. Hence the government may, if it chooses, refuse to allow immigrants it has not approved to use public property. Since public property includes almost the entire highway system, that makes it hard for an immigrant not approved by the government to do anything in the country much beyond employment in a farm on the border.
Here again, the argument proves too much. The government’s control of the public school is accepted because it is for the purpose of the school, the same purpose it would have if private. Most people, almost certainly most libertarians, would be outraged if the school announced that the girls’ room was only available to girls whose parents promised not to own firearms, or not to publicly criticize the mayor, or not to do something else they were legally entitled to do. In that case the control over public property would be being used not for the purpose of that property but as a way of coercing people.
Similarly here. If roads were private, their owners might require some form of driver’s license in order to make their roads safer. If the roads are public, it is not unreasonable for them to require a driver’s license and refuse to allow an immigrant without one to drive. But that does not justify forbidding a legal driver from carrying the immigrant. What Smith’s argument is proposing is the government using its control over public property not to serve the purposes of that property but to prevent voluntary transactions between its citizens and foreigners.
Suppose we accept the argument. A private owner is entitled to refuse to allow anyone not vaccinated onto his property. Hence the government is entitled to impose a vaccine mandate, enforced by forbidding anyone not vaccinated from using public property. It is entitled to effectively lock urban residents into their homes by forbidding them from using the public roads or sidewalks. It is entitled to ban drug use, prostitution, very nearly any of the activities libertarians believe it is not entitled to ban, by denying the people who do those things access to any public property. The exception swallows the rule.
I conclude that libertarians ought to support open borders. They may want to qualify that by including the condition that immigrants not receive all the rights of citizens, such as the right to vote or to receive government benefits, until they have been naturalized.
 Dave Smith responded to the argument about using control of government property against drug users, raised by Spike Cohen in their debate, by saying that it was legitimate to forbid addicts from shooting up on government property. He did not consider that the same argument would justify forbidding anyone who shot up anywhere, including his own property, from ever using government property.