Sunday, June 26, 2022

Open Borders: The Libertarian Argument

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.[1] 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.

 

 




 



[1] 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.



25 comments:

geogavino said...

If we accepted the first libertarian argument for restrictions that you cite (disregarding for the moment your other objections), would it not also follow that the best approximation for a libertarian society is one in which the government can regulate all behavior that is not exclusively conducted within private boundaries? Would that not justify, ostensibly on libertarian grounds, a vast array of control by a government as long as it is based on an argument of approval by the majority? I'm not sure if I'm missing some particular nuance that only applies to immigration or do Hoppe or others make similar arguments on other issues (i.e., as you mention justifying restrictions on use of drugs, smoking, wearing a burqa, displays of affection by certain people, or not standing appropriately for the national anthem)?

back40 said...

"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."

The frontier closed in 1890. The country was settled. There were no more tracts of land to be taken by immigrants. The indigenous population had been dispossessed. It was over.

Failure to engage with these issues as both an explanation for early policy, and later change, evades reality.

Anonymous said...

I think the two core arguments against open borders from a libertarian perspective are more practical than philosophical. Specifically that it would open the border to large numbers of immigrants that would be net consumers of government services thus increasing the cost of government and decreasing its utility. Second is a concern that large numbers of immigrants that do not come from a society that raised them with core libertarian ideas like the primacy of private property, the basic civil rights, and the obligation to look after yourself and your family would dilute the body politic and that we would quickly no longer be a libertarian society.

Of course some may very well argue that that has already happened from within the country itself, but no need to compound one error with another.

David Friedman said...

@Back40:
The frontier may have closed in 1890, but the highest immigration rate was thirty to forty years later, largely going into cities. We may no longer have land for immigrants but we still have a very low population density for a developed country.

Anonymous said...

Of course, one would have to support those arguments with empirical evidence that immigrants, on average, ARE net consumers of public goods and DO come from cultures that don’t value whatever. Certainly some immigrants are, but it’s far from obvious that “immigrants” as a group are.

And once you start discriminating between immigrants from one country or culture or language or race and another, you’ve given government a much more intrusive role to play. (A role the US government happily played from about 1900-1960, and some would like it to play again.)

back40 said...

"we still have a very low population density for a developed country"

What is the TFR for those overpopulated but developed countries? Is just counting noses an effective way to think about societies?

David Friedman said...

@Back40:

I think most developed countries, both densely and sparsely populated, have TFR below 2. It's 1.4 for Canada, 1.5 for Russia, 1.58 for Australia.

How would you judge what countries would or wouldn't benefit by immigration?

Anonymous said...

Your account of the history is technically correct, but substantially false. Not that we should hold history as a role model, but we should know it.

For the first century, the states had their own immigration barriers, including between the states. They had very low standards, but did not have open borders. Quotas were first imposed in the 20s, but federal barriers on general immigration were imposed 50 years earlier. Federal barriers were created in part to reduce interstate barriers and also because of the end of federalism. The federal laws were only enforced at ports, not land borders, so they effectively did not apply to Mexican immigration, but they did apply to other New World immigration. I'm unclear if they claimed to apply to Mexican immigrants. Unenforced laws are the road to tyranny, and the ethnic cleansing of Mexicans during the Depression may have been related to this, though it might be its own tyranny.

back40 said...

"How would you judge what countries would or wouldn't benefit by immigration?"

How is benefit measured? What factors are included/excluded/unknown and for what time frame? How is data acquired?

All of the discussions I've seen skip over the awkward parts and the knowledge problems.

It's a wicked problem.



John Frederic Kosanke said...

Simple solution: Give renewable worker visas, student visas, and tourist visas to all applicants who pass a basic background check for criminal records, and sell citizenship (which includes voting rights, education rights, &c) at a price high enough to deter "welfare". Citizenship by birth should only apply to offspring of citizens.

William H. Stoddard said...

It seems to me that in our current, not all that libertarian situation, it's a case of "Open borders; the welfare state; fiscal solvency. Choose two." Of course ideally we'd like to have open borders and fiscal solvency, but the welfare state may be too entrenched to get rid of. And a collapse of the existing government has some big downsides.

Arqiduka said...

Hoppe's second argument is the hardest to deal with: in practice, it is far, far easier to stop people from coming over than it is to stop them becoming citizens or accessing public funds, so to argue for the former and against the latter is just plain impractical. At which point, we reach a bifurcation in the road.

Old Rothbard's signature style of dirt-simple principles would have been enraged at the idea of infringing one's rights (prevent from crossing an "imaginary" line) to prevent a possible, even likely breach of rights to citizens. You're only supposed to infring rights as a direct punishment for an actual infringement, not a stipulated one. Even assuming this away, there remains the issue of proportionality: is it over-reacting to punish such agression (living om the dole on stolen cash) by preventing one from crossing the "imaginary" line?

Or one could accept that one may have to trade NAP infringements of two parties of whom neither is the agressor, a scenario that is just never supposed to arise, at which point we go from principled libertarianism to the practical libertarianism-as-good-to-have that struggles to exist as an independent ideology.

Roger said...

California population has increased from about 20 to 40 over the last 50 years, from immigration. With open borders, it could be 100 million. The change has been mostly for the worse. Californians did not want all these extra people. If liberty means anything, it should mean freedom from being displaced by foreign invaders.

Anonymous said...

If liberty means anything, why shouldn't you be free to move where the migrants came from? Didn't UN drug policies cause them to become displaced in the first place?

If migrants could make more legally staying in their countries making drugs for the huge US market, would there even be a migrant issue?

David Friedman said...

@Roger:
Freedom, at least as libertarians understand it, doesn't mean freedom from competition. If "being displaced" mean that house prices or apartment rentals are higher because the new immigrants are bidding them up, that doesn't violate anyone's freedom, and similarly if they are competing for jobs.

What is the sense in which Californians are being displaced?

Joe G said...

I'm a classical liberal (and long-time reader, first-time commenter on this blog) but this must be the only standard classical liberal/libertarian position I strongly disagree with, as I'm pretty restrictionist on immigration like Hoppe. I appreciate your thoughtful take on it David, however I think there are a few points I'd like to make. This is a long response across multiple comments due to the character limit. In response to the argument that in the ideal libertarian society people would be free to exclude or admit anyone, you say:


"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."


Yes but employers, landlords etc. can only interact in this way with immigrants from all over the world so easily and freely because that interaction is facilitated by public infrastructure, the extent of which in modern developed countries is vast. Even when immigrants can't claim individualized welfare payments almost all roads, highways, railways, ports, airports, sanitation, waste disposal, public land in general etc. facilitate and subsidize interaction with employers and landlords.

Additionally, as Hoppe points out in the essay you link to, employers etc. are not entirely prevented from interacting with foreigners by immigration restrictions - they can communicate with them, trade with them at a distance etc. What they can't do is use the public infrastructure, unconditionally and without restriction, to facilitate certain kinds of interaction that inevitably involve the public infrastructure.

Joe G said...

Continuing from my first comment, open-borders libertarians seem to use a strangely narrow measure of the cost immigrants can impose on citizens. The suggestion often made is that, as long as individualized benefits such as welfare payments and school places are denied to non-paying immigrants, then the immigrants aren't using public resources. But this clearly isn't true. Anyone walking down the public street is using public resources, anyone who uses a bathroom, even if the bathroom itself is private, uses the public sanitation system. Additionally, anyone protected by the law is using public resources. If immigrants truly weren't to use any public resources, not only could they not use public roads and highways etc. but they would also be outlaws and would have to pay for their own private protection, take out insurance to ensure crimes against them would be prosecuted etc. Immigrants are (rightly!) protected by the law, but while I'm certainly not advocating that immigrants be outlaws, legal protection (of anyone) clearly comes at a cost, and this cost would be substantial for a large immigrant population. Just as a small town requires less policemen and judges than a large city does, larger populations require more of these services (police and courts etc.) - assuming the level of provision remains the same. Immigrants should, of course, be protected by the law - but, in turn, immigration should be conditional and restricted. You later say:


"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."


The difference is that if you sell me a gun which you fully own, then that is just a private transaction between me and you, so yes, in that case the liability for what I do with the gun is mine alone. But if an employer invites an immigrant into the country, the employer is, in effect, using his authority to give the immigrant access to the public infrastructure, which is not solely owned by the employer, but in effect owned jointly by all citizens. In that circumstance, it makes sense that when citizens (such as an employer) have individual discretion to grant access to this jointly-owned property, then that discretion is subject to additional rules, and special liability when those rules are broken.

To create an analogy to this situation using a gun transfer, imagine that you have a gun in your possession which was sold to you by a gun-owning co-op that you are a member of. The co-op sold it to you for a lower than market price, but in exchange for that low price the gun-owning co-op retains some residual contractual rights in the guns they sell. One of the residual rights the gun-owning co-op retains is that if you transfer the gun to anyone who commits crimes with it, they have the right to sue you for being in breach of your contractual obligation to them. I think this is the true analogy to the situation of employers when they invite immigrants into the country, and they could be liable for the immigrants actions for the same reason.

Joe G said...

Continuing from my second comment, in response to the argument that governments can control the use of public property, you say:


"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."


Who's to say what the purpose of private property is though? Isn't that up to the property owner and can't property have multiple purposes? If a private road company says: "We primarily just want to provide good roads, but we also want good relations with the neighbourhoods our roads go through, as such we have begun a consultation with numerous neighbourhood associations. We have decided to follow the advice of some neighbourhood associations to impose additional fees on some non-local individuals who regularly use our roads to drive through certain neighbourhoods, and to prohibit some non-local individuals from some neighbourhoods entirely".

Criticism of the road company for this policy might be valid, but I don't think it can be based on the inherent purpose for which the road company uses its property - surely that's up to the property owner, the road company in this situation?

I appreciate you highlighting these issues, but I still think that immigration restrictions are really just an extension of the basic government function of protecting private property and defending against foreign invasion. Of course, there are good and bad ways to implement such restrictions, and current systems are probably too centralized and bureaucratic, but that can be true of any basic government function, including protecting private property.

Additionally, it's not even clear how open-borders libertarians maintain that a basic function of government is to defend against foreign invasion, as they invariably do. How do you define a foreign invasion? For non-open-borders libertarians this is a non-issue, the government can respond to any entry in violation of restrictions with force sufficient to repel it.

But for open-borders libertarians: at what point does mass immigration become, from the perspective of libertarian principles, an invading army? It's an important distinction from the open-borders libertarian perspective because of the massive difference between the allowable government response: open-borders libertarians think the government must allow any amount of immigration and not use force to stop it, but they invariably still agree that the state can use deadly force to stop a foreign invasion.

Whether the entrants have been ordered to enter by a foreign government can't be the deciding factor: that would mean the state would have to allow guerrilla militias to freely cross the border, as they don't answer to any government. If coordination is the deciding factor, then what counts as coordination? Much recent immigration to both the US and EU has involved substantial coordination by various groups. So maybe at least some of that should be considered equivalent to a foreign invasion?

Surely the best conclusion is just that the open-borders libertarian position is unworkable and that some kind of immigration restrictions are an extension of libertarian principles, not a contradiction of them as the standard libertarian position maintains.

What's emanating from your penumbra said...

As acknowledged in the post, a big challenge to supporting open borders, which I agree in a broad sense (and in a vacuum) has libertarian appeal, is that there are many policies that muddy the distinction between immigrants and citizens, which makes taking a stand in favor of open borders non-libertarian on net.

On top of the points raised in the post about services that currently can't be withheld from immigrants, you have to contend with the policy that a child born while inside the borders automatically is entitled to citizenry, even if the parents are non-citizens. That policy may or may not be ideal in its own right, but when combined with the question of whether open borders is a libertarian policy, the former policy pushes the latter further away from a libertarian ideal than does even the existing framework of laws that grants immigrants many of the benefits of citizenship.

The question of open borders is rarely presented in combination with a serious proposal for other changes that would be necessary for a libertarian result. If you assume there is not a willingness to change these other policies (which seems like a logical assumption since they hardly even are brought to the table, and in fact the momentum seems to be going in the other direction, see e.g. recent attempts to give voting rights to non-citizen immigrants) -- in other words, if the question is open borders when taking into consideration the reality of other laws that reasonably can be expected to remain similar to their current form -- I don't think the case has been made that open borders is the correct libertarian position.

On the other hand, if the question is whether open borders is a libertarian policy in a hypothetical scenario where all other laws can be modified as needed, I agree that open borders probably is the more libertarian position.

Anonymous said...

Didn't Milton Friedman once comment that a country can have a welfare state or open borders, but not both?

Jasper

Sharper said...

My proposal, for a method politically palatable, is similar in some ways to Hoppe, but without the drawbacks of a particular sponsor. Essentially, each immigrant would post a bond covering whatever net costs/benefits for their first 20 years of interaction with the government.

So crimes, welfare, etc... would count against them, but their taxes, fees, etc... would count for them. Ultimately, the bonding company (or whoever they sold the bond to) would either compensate the government or be paid by them.

That way the bonding companies could do their own investigation/background checks on potential immigrants, pricing the risks accordingly.

In a competitive market, good immigrants would likely get bond prices below their current costs to immigrate, but much faster, while a high terrorist risk might not be able to get a bond at any price. A garden variety criminal might be expected by the bonding agency to agree to tracking, or some other way to ensure they don't victimize someone and cost them a lot of money. Re-insurance, a secondary market, etc... would keep the bonds efficient.

The idea is that we get effectively open borders/immigration, while taking care of the objections that immigrants will be a burden in the best possible way, by letting the market take care of it empirically over time.

Sigis said...

David, I have a different argument against the open borders. Consider the natural experiment of Ukraine which is not able to close its border since 2014, so terrorists, militants, illegal weaponry arrive to brutalize the indigenous population and to displace the local people. If, let's say, small country Estonia (population 1.3 million) with a fragile ethnic balance would open its borders, merely few hundreds of thousands of immigrants or less would make Estonians minority at their ancestral land and an object of a whim of dominating demographics. Imagine the cultural losses of nations disappearing.

Sigis said...

To add, small country Estonia primarily and immediately would be overrun by much larger Russia's colonizers, but additionally, as a relatively prosperous EU country, it would be destination of millions or even billions of global immigrants. It would nearly instantly obliterate the host nation.

David Friedman said...

@back40:

I don't see the relevance of the closing of the frontier. Some immigrants settled new land but many, I would guess most, bought or rented land or housing from those already here.

Also, on your dating, the frontier closed more than thirty years before immigration restrictions, other than on Chinese, were imposed.

David Friedman said...

@Joe G:
"almost all roads, highways, railways, ports, airports, sanitation, waste disposal, public land in general etc. facilitate and subsidize interaction with employers and landlords."

They aren't generally subsidized, and shouldn't be. Highways are largely funded by gas taxes, waste disposal is something cities charge for. Law enforcement is paid for by taxes, which immigrants and their employers also pay. Why do you assume that the immigrants are imposing net costs on the previous residents?

The foreign invasion governments are supposed to protect against is invasion by armies, which seize or destroy property without the permission of its owners. Hoppe describes immigrants as invaders but the closest he comes to justifying it is to point out that they can come close to your property without your permission. In the Anarcho-capitalist society he takes as a model, people can come close to your property without your permission. As he himself says, owners of highways would be expected to make them available (probably at a price) to practically everyone.

Your argument seems to be that we can imagine the owners of the transport network of an A-C society choosing to keep immigrants out, hence it is legitimate for the government to do so. We can also imagine their refusing to let anyone who ever used drugs, or had non-marital sex, or hired someone for less than fifteen dollars an hour, from using their highway. Does that justify the government imposing all of those restrictions?

What we know is that, in an A-C society, it would be the owner of property who determined who was allowed to use it, whom he bought from, hired, or sold to. Hoppe wants to prevent that on the grounds that other inhabitants don't want him to.