All Commentary
Tuesday, August 18, 2015

Nations (and Borders) Can Exist Without Restricting Immigration

Donald Trump and Bernie Sanders are wrong

One of the most common arguments advanced by immigration restrictionists is that we must curtail migration because a nation can’t exist without borders.

As Republican presidential front-runner Donald Trump recently put in his recent statement on immigration policy, “A nation without borders is not a nation. [Therefore] There must be a wall across the southern border.” This claim is simply false.

Even if we assume that a nation cannot exist without borders (itself a contestable claim because many nations have historically had unclear or contested boundaries), it does not follow that the maintenance of borders requires immigration restrictions.

In reality, borders have a wide range of other functions, besides regulating immigration. For example, they define the territory within which a given government’s laws are binding, and also the land area within which it may deploy its armed forces without getting permission from other governments.

If all immigration restrictions were abolished tomorrow, borders could readily continue to facilitate these and other purposes. A nation that doesn’t exclude peaceful migrants can still bar invading armies.

The history of the United States also shows that borders — and nations — can exist without immigration restrictions. 

Until the Chinese Exclusion Act of 1882, the federal government did not forbid voluntary immigration. Indeed, the original meaning of the Constitution did not give Congress the power to do so, allowing it to restrict eligibility for citizenship, but not to forbid migration. Some state governments had laws excluding immigrants, but not the federal government (and migrants excluded by one state could still potentially enter through another).

If we take Trump’s theory (and others like it) seriously, the Declaration of Independence did not make the United States a nation because it did not establish any immigration restrictions. Even worse, it condemned George III for “obstructing the laws for naturalization of foreigners [and] refusing to pass others to encourage their migration hither.”

Instead of celebrating Independence Day on July 4, we should commemorate the enactment of the Chinese Exclusion Act. Jefferson Davis and his friends need not have taken the trouble of trying to secede from the United States in 1861. They should instead have argued that it simply did not exist in the first place.

Even today, some nations, such as Argentina, do not restrict immigration. Few would argue that Argentina is not a real nation, that it has no borders, or that it somehow ceased to exist when it adopted a virtual open borders policy towards migrants in 2004.

The debate over immigration policy raises a number of genuinely complex issues regarding the economic, political, and cultural effects of migration, and the extent to which it is morally permissible to make immigration policy without considering the freedom and well-being of would-be immigrants themselves.

There are restrictionist arguments that deserve serious consideration, such as claims that immigration might create dangerous “political externalities” that reduce the quality of public policy. But the assertion that we must restrict immigration because nations cannot exist without borders isn’t one of them.

This post first appeared at the Volokh Conspiracy.

  • 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.