California Attorney General Xavier Becerra is launching a preemptive legal assault against the Trump Administration’s promise to pull tens of billions of dollars of federal funding from sanctuary cities that do not cooperate in enforcement against illegal aliens.
Attorney General Becerra is leading a coalition of 300 cities, 18 counties, and the State of California that intend to sue the Trump Administration over U.S. Attorney General Jeff Sessions’ plan to begin cutting off funding to jurisdictions tagged by the U.S. Justice Department as sanctuary cities that harbor illegal aliens from Immigration and Customs Enforcement (ICE) agents.
We believe in private property rights. I do not have the right to wander into your house, or into your gated community, or into Disneyworld, or onto your private beach, or onto Jay-Z’s private island. I can move onto any property I myself own or whose owner wishes to have me. I cannot simply go wherever I like.
Now if all the parcels of land in the whole world were privately owned, the solution to the so-called immigration problem would be evident. In fact, it might be more accurate to say that there would be no immigration problem in the first place. Everyone moving somewhere new would have to have the consent of the owner of that place.
When the state and its so-called public property enter the picture, though, things become murky. Consider, for instance, the large number of ethnic Russians whom Stalin settled in Estonia. This was not done so that Baltic people could enjoy the fruits of diversity. It never is. It was done in an attempt to destroy an existing culture, and in the process to make a people more docile and less likely to cause problems for the Soviet empire.
In a fully private-property society, people would have to be invited onto whatever property they traveled through or settled on. If every piece of land in a country were owned by some person, group, or corporation, this would mean that no person could enter unless invited to enter and allowed to rent or purchase property. A totally privatized country would be as closed as the particular property owners desire. It seems clear, then, that the regime of open borders that exists de facto in the U.S. and Western Europe really amounts to a compulsory opening by the central state, the state in charge of all streets and public land areas, and does not genuinely reflect the wishes of the proprietors.
In the current situation, on the other hand, immigrants have access to public roads, public transportation, public buildings, and so on. Combine this with the state’s other curtailments of private property rights, and the result is artificial demographic shifts that would not occur in a free market. Property owners are forced to associate and do business with individuals they might otherwise avoid.
Commercial property owners such as stores, hotels, and restaurants are no longer free to exclude or restrict access as they see fit. Employers can no longer hire or fire who they wish. In the housing market, landlords are no longer free to exclude unwanted tenants. Furthermore, restrictive covenants are compelled to accept members and actions in violation of their very own rules and regulations.
By admitting someone onto its territory, the state also permits this person to proceed on public roads and lands to every domestic resident’s doorsteps, to make use of all public facilities and services, such as hospitals and schools, and to access every commercial establishment, employment, and residential housing, protected by a multitude of nondiscrimination laws.
The U.S. Department of Justice’s Inspector General issued a memorandum in August 2016 advising that sanctuary city practices violate federal law. The IG finding empowers Attorney General Sessions with the authority to seek court orders to strip up to about $135 million in federal grants to California state and local law enforcement agencies that refuse to comply with U.S. laws. The Justice Department could also broaden the cut-off to another $360 million in drug enforcement grants to schools, harbors, and airports.
Trump on January 25th issued Executive Order: Border Security and Immigration Enforcement Improvement to give the Justice Department the power to ban federal funding for sanctuary cities. U.S. District Judge William H. Orrick III, an Obama appointee, ruled in April that the executive order was unconstitutional, but the Trump Administration has filed an appeal and expects to get a ruling overturning the lower court.
The Trump Administration is seeking broader authority with the Republican-controlled House of Representatives recently passing Kate’s Law, which would increase maximum penalties for criminal aliens who attempt to re-enter the country, and H.R. 3003, which would cut funding to sanctuary cities that refuse to cooperate with federal immigration laws.
With the U.S. Senate expected to soon pass similar legislation for President Trump’s signature, California Democrats understand that $93.6 billion in federal funding, amounting to about 37 percent of the state’s $252.5 billion in spending for fiscal year 2015, is at risk of being suspended over issues associated with sanctuary cities.
The breakdown of California’s federal funding, by department, includes: 52 percent for Health and Human Services (Medicaid); an average of 25 percent of all state and local government general revenues for Labor and Workforce Development; 14 percent for Education; 6 percent for Transportation; 2 percent for Legislative, Judicial and Executive; and 1 percent for General Government, which includes Natural Resources, Environmental Protection, Corrections and Rehabilitation, State and Consumer Services.
In an added risk to Democrats, Breitbart California editor Joel Pollak reported on August 5th that Judicial Watch just wrote a letter to California Secretary of State Alex Padilla questioning why 11 of California’s 58 counties appear to be in violation of the U.S. Voter Registration Act by having more registered voters than adults over the age of 18.
With a background that included 13 years working in the Civil Division of the state attorney general’s office, 12 terms in Congress, and being the second ranking Democrat on the powerful U.S. House Ways and Means Committee, California Governor Jerry Brown appointed Becerra as Attorney General in January to gain insight into how far California’s sanctuary cities and counties can push back against President Trump, before his Administration retaliates with a funding cutoff and aggressive enforcement of voter laws.
It is rather unfashionable to express concern for the rights of property owners, but whether the principle is popular or not, a transaction between two people should not occur unless both of those people want it to. This is the very core of libertarian principle.
In order to make sense of all this and reach the appropriate libertarian conclusion, we have to look more closely at what public property really is and who, if anyone, can be said to be its true owner. There are two positions we must reject: that public property is owned by the government, or that public property is unowned, and is therefore comparable to land in the state of nature, before individual property titles to particular parcels of land have been established.
Certainly we cannot say public property is owned by the government, since government may not legitimately own anything. Government acquires its property by force, usually via the intermediary of taxation. A libertarian cannot accept that kind of property acquisition as morally legitimate, since it involves the initiation of force,the extraction of tax dollars, on innocent people. Hence government’s pretended property titles are illegitimate.
But neither can we say that public property is unowned. Property in the possession of a thief is not unowned, even if at the moment it does not happen to be held by the rightful owner. The same goes for so-called public property. It was purchased and developed by means of money seized from the taxpayers. They are the true owners.
This, incidentally, was the correct way to approach de-socialization in the former communist regimes of eastern Europe. All those industries were the property of the people who had been looted to build them, and those people should have received shares in proportion to their contribution, to the extent it could have been determined.
In anarchy, with all property privately owned, immigration would be up to each individual property owner to decide. Right now, on the other hand, immigration decisions are made by a central authority, with the wishes of property owners completely disregarded. The correct way to proceed, therefore, is to decentralize decision-making on immigration to the lowest possible level, so that we approach ever more closely the proper libertarian position, in which individual property owners consent to the various movements of peoples.
Free immigration would appear to be in a different category from other policy decisions, in that its consequences permanently and radically alter the very composition of the democratic political body that makes those decisions. In fact, the liberal order, where and to the degree that it exists, is the product of a highly complex cultural development. One wonders, for instance, what would become of the liberal society of Switzerland under a regime of open borders.
Switzerland is in fact an interesting example. Before the European Union got involved, the immigration policy of Switzerland approached the kind of system we are describing here. In Switzerland, localities decided on immigration, and immigrants or their employers had to pay to admit a prospective migrant. In this way, residents could better ensure that their communities would be populated by people who would add value and who would not stick them with the bill for a laundry list of benefits.
Obviously, in a pure open borders system, the Western welfare states would simply be overrun by foreigners seeking tax dollars. As libertarians, we should of course celebrate the demise of the welfare state. But to expect a sudden devotion to laissez faire to be the likely outcome of a collapse in the welfare state is to indulge in naïveté of an especially preposterous kind.
Can we conclude that an immigrant should be considered invited by the mere fact that he has been hired by an employer? No, because the employer does not assume the full cost associated with his new employee. The employer partially externalizes the costs of that employee on the taxpaying public.
Equipped with a work permit, the immigrant is allowed to make free use of every public facility: roads, parks, hospitals, schools, and no landlord, businessman, or private associate is permitted to discriminate against him as regards housing, employment, accommodation, and association. That is, the immigrant comes invited with a substantial fringe benefits package paid for not (or only partially) by the immigrant employer, but by other domestic proprietors as taxpayers who had no say in the invitation whatsoever.
These migrations, in short, are not market outcomes. They would not occur on a free market. What we are witnessing are examples of subsidized movement. Libertarians defending these mass migrations as if they were market phenomena are only helping to discredit and undermine the true free market.
Moreover, the free immigration position is not analogous to free trade, as some libertarians have erroneously claimed. In the case of goods being traded from one place to another, there is always and necessarily a willing recipient. The same is not true for free immigration.
To be sure, it is fashionable in Occident to laugh at words of caution about mass immigration. Why, people made predictions about previous waves of immigration, we’re told, and we all know those didn’t come true. Now for one thing, those waves were all followed by swift and substantial immigration reductions, during which time society adapted to these pre-welfare state population movements. There is virtually no prospect of any such reductions today. For another, it is a fallacy to claim that because some people incorrectly predicted a particular outcome at a particular time, therefore that outcome is impossible, and anyone issuing words of caution about it is a contemptible fool.
The fact is, politically enforced multiculturalism has an exceptionally poor track record. The twentieth century affords failure after predictable failure. Whether it’s Czechoslovakia, Yugoslavia, the Soviet Union, or Pakistan and Bangladesh, or Malaysia and Singapore, or the countless places with ethnic and religious divides that have not yet been resolved to this day, the evidence suggests something rather different from the tale of universal brotherhood that is such a staple of leftist folklore.
No doubt some of the new arrivals will be perfectly decent people, despite the US government’s lack of interest in encouraging immigration among the skilled and capable. But some will not. The three great crime waves in US history – which began in 1850, 1900, and 1960 — coincided with periods of mass immigration.
Crime isn’t the only reason people may legitimately wish to resist mass immigration. If four million Americans showed up in Singapore, that country’s culture and society would be changed forever. And no, it is not true that libertarianism would in that case require the people of Singapore to shrug their shoulders and say it was nice having our society while it lasted but all good things must come to an end. No one in Singapore would want that outcome, and in a free society, they would actively prevent it.
In other words, it’s bad enough we have to be looted, spied on, and kicked around by the state. Should we also have to pay for the privilege of cultural destructionism, an outcome the vast majority of the state’s taxpaying subjects do not want and would actively prevent if they lived in a free society and were allowed to do so?
The very cultures that the incoming migrants are said to enrich us with could not have developed had they been constantly bombarded with waves of immigration by peoples of radically different cultures. So the multicultural argument doesn’t even make sense.
It is impossible to believe that the USA or Europe will be a freer place after several more decades of uninterrupted mass immigration. Given the immigration patterns that the US and EU governments encourage, the long-term result will be to make the constituencies for continued government growth so large as to be practically unstoppable. Open-borders libertarians active at that time will scratch their heads and claim not to understand why their promotion of free markets is having so little success. Everybody else will know the answer.
- Borders satisfy innately human desires for order and separation. Borders arise and exist naturally, without being created or enforced by political entities (although they were generally less rigidly defined and more porous prior to the era of modern governments).
- Nation is not state. Nations can and do emerge naturally, while states tend to be late-arriving artifices that do injury to earlier, more natural borders.
- In-group preferences are strong. Provided groups coexist without coercion or violence, libertarianism has nothing particular to say about such preferences.
- Humans are not all good and well-intentioned, nor are they fungible. People with money, intelligence, or in-demand skills are better immigrants than people without these attributes. Poor and criminal immigrants impose huge costs. Any worldview that denies this, or downplays this, fails to comport with reality. Libertarianism, rooted in natural law, should by definition accord better with reality than worldviews requiring positive law. Why do we lose sight of this?
- Humans naturally want to live in safe areas, i.e., in “good neighborhoods” on a macro scale. And they want to know their neighbors are not a threat. In other words, there is a market for security beyond one’s own property — not everyone can own and control vast areas of property like Ted Turner. This is why gated communities exist. Simply stating that “nobody has a right to control any property they don’t own” does not address reality.
- Almost all instances of rapid mass migration do not occur as natural marketplace phenomena. Instead, they usually occur due to wars, famine, and other state-created disasters. So it does not follow that resistance to mass migration is anti-market.
- Every human has a natural right to control his body and movement. No human should be falsely imprisoned, enslaved, or held in a place against his will. But the right to leave a physical place is different than the right to enter one. Entry should be denied or permitted by the rightful owner of the property in question. But when vast areas of land are controlled (and/or ostensibly owned) by government, the question becomes much more complex — and the only way to make it less complex is to privatize such land. Unless and until this happens, it is facile for libertarians simply to insist that everyone has a right to go wherever they wish.
- The concept of open borders is mostly a big-government construct. Without state-provided incentives (food, housing, clothing, schooling, mobile phones, etc.), and frequent NGO funding for actual travel, immigration naturally would be far more restricted.
- A libertarian society has no commons or public space. There are property lines, not borders. When it comes to real property and physical movement across such real property, there are owners, guests, licensees, business invitees, and trespassers.
- Libertarianism is not a suicide pact. It does not require us to ignore history, tradition, culture, family, and self-preservation. It does not require us to live as deracinated, hyper-individualized people who identify with nothing larger than ourselves and have no sense of home.