(Uncorrected Final Draft)

Forthcoming in Social Theory and Practice

Immigration: The Argument for Legalization1

Abstract: Many liberal democracies have large populations of

“unauthorized” migrants, who entered in contravention of

immigration laws. In this paper, I will offer a new

argument for allowing long resident unauthorized migrants to

transfer to “legal” status, which would allow them to live

and work legally in their country of residence, without fear

of deportation. I argue that legalization is required to

secure the autonomy of these migrants, and that only be

securing their autonomy can the state exercise authority

over them legitimately. I also respond to popular1 Versions of this paper were presented at Clemson University on November 19th 2013 (as a Lemon Lecture in Social, Legal, and Political Thought) and at the Center for Humanities and Arts Fellowship Workshop at CU Boulder on January 22nd 2014. Many thanks to all those present for their comments. For comments anddiscussion I’m also very grateful to Crispino Akakpo, Mahrad Almotahari, Dominic Bailey, Jan Brezger, Barbara Buckinx, Eric Chwang, Adam Cox, Candice Delmas, Christopher Grau, Chris Heathwood, Ian Hosein, Mike Huemer, David Mapel, Todd May, Mitzi Lee, Alastair Norcross, Stephanie Silverman, Christopher Heath Wellman, Daniel Wueste and members of my Spring 2012 political philosophy seminar. Special thanks to Michael Blake for very helpful discussion and support for this project.

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objections to legalization and illustrate the distinctive

policy implications of my approach.

Keywords: Immigration; Undocumented Immigrants; Irregular

Immigrants; Amnesties; Carens; Deportation; Unauthorized

Immigrants; Autonomy.

1. Introduction

How should states treat people who enter their

territory in violation of their immigration laws? These

migrants are sometimes called “unauthorized” and sometimes

“illegal,” but since those terms have become so politicized

I will just use the (hopefully) more neutral term

“unauthorized.”2 In recent years, there have been many

2 There is a technical use of “immigrant” which means “permanent resident” and a corresponding use of “nonimmigrant” to mean “someone present in a territory on a temporary basis.” Since these terms imply a particular legal status, and I want to discuss a variety of legal statuses, I am instead going to speak just of “migrants,” meaning the broad category of people who movefrom one territory to another for any length of time. I’ll use the term “long-term migrant” to refer to those who are present ina territory for a substantial time period.

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controversies about the treatment of unauthorized migrants.

In this paper I would like to consider perhaps the most

controversial step: allowing them to transfer to “legal”

status, which would enable them to live and work legally in

the territory.

One way to defend legalization is to argue for open

borders in general: the view that people should be allowed

to move freely across political borders and settle where

they wish.3 If states are required to have open borders,

then it follows that they should allow unauthorized migrants

to stay, since everyone must be allowed to reside wherever

they please. But many people are in favor of legalization

though not in favor of open borders, and think that only

political refugees have a right to entry. This is the

position I want to consider here: is legalization required,

even if states are not generally required to admit migrants,

including migrants with a substantial interest in entering?

3 For a critical survey of the literature on open borders see Shelley Wilcox, “The Open Borders Debate on Immigration,” Philosophy Compass 4 (2009): 1-9.

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I will focus on the United States for illustration, but will

establish some general principles as well.4

There are some important existing defenses of

legalization, most centrally in Joseph Caren’s work.5 We

can distinguish two main arguments offered by Carens.

According to the “social membership argument” (as I will

call it), unauthorized migrants should be granted the right

to stay because they have relationships with other people in

the community. These relationships make them “social

members” of the society they migrated to and granting them

the right to stay is a way of “legally recognizing” that

social membership.

A second argument Carens offers also draws on the

importance of the relationships that unauthorized migrants

form with the rest of society. According to this argument,

4 The U.S. currently has a large population of unauthorized migrants, usually estimated at around ten to twelve million. SeeJeffrey Passel, D’Vera Cohn, and Ana Gonzalez-Barrera, “Population Decline of Unauthorized Immigrants Stalls, May Have Reversed,” Pew Internet & American Life Project, (2013), available at http://www.pewinternet.org/PPF/r/213/report_display.asp, accessedon Sept. 23, 2013.5 Joseph Carens, The Ethics of Immigration (New York: Oxford UniversityPress, 2013), Chapt. 7.

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“the interest argument” (as I will call it), those

relationships are morally important because they mean that

the migrants have a strong interest in staying: given their

involvement in the community, they would suffer a lot if

they had to leave.

These arguments make a strong case for legalization,

but in this paper I am going to set them aside and offer an

alternative defense of legalization. According to my

“autonomy argument,” legalization is important because it is

necessary for securing the autonomy of unauthorized

migrants. One reason for securing their autonomy is that

people are (all else being equal) better off when they are

autonomous. To that extent, my argument builds on the

interest argument by proposing another interest that is

protected by legalization.6 But I will focus on a second

reason for securing their autonomy: that doing so is a

precondition for the state to exercise authority over them

6 For an important argument that autonomy contributes to well-being, see Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1988).

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legitimately. These considerations, I will explain, tell in

favor of legalization for long-term unauthorized migrants.7

It is worth considering the autonomy argument, in

addition to Carens’ arguments, for a several reasons.

First, even if Carens gives us some reasons for favoring

legalization, the case for legalization may be strengthened

if there are additional reasons. Second, despite their

initial plausibility, Carens’ arguments have met with some

significant resistance both among theorists and in political

and legal debates.8 So it is important to see if there is

another argument that might appeal to those who reject his

position. Third, the autonomy argument has some potentially

different policy implications from Carens’ argument.9 It

justifies legalization for people that Carens’ arguments may

not and so it is important to see if a case can be made for

legalization in these instances.

7 I will explain below just what counts as “long-term.” 8 See, for instance, the responses to Carens by Alexander Aleinikoff, Gerald Neuman, and Peter Schuck in the following Boston Review Forum on Carens’ work: https://www.bostonreview.net/forum/case-amnesty-joseph-carens. 9 See my discussion below in Section 5.

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I will begin, in Section 2, by outlining a general

approach to justifying rights against the state, one

grounded in the need to reconcile the exercise of authority

with respect for individual autonomy. In Section 3, I will

apply that framework to justifying the “right to remain” in

a territory: the right to stay there free from the threat of

deportation. I will first explain why citizens should be

granted this right and then consider which migrants should

also be granted it, arguing for the relevance of the length

of a migrant’s stay, along with some other factors. With

this framework in hand, I will show that most unauthorized

migrants to the United States should be granted the right to

remain. Section 4 considers various objections to my

argument. Section 5 outlines its policy implications and

Section 6 concludes.

2. Authority And Autonomy

States exercise authority over people within their

jurisdiction. This involves issuing wide-ranging and

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ongoing laws that are backed by coercion. On the face of

it, it is puzzling how this can be permissible or, to use

the common term, “legitimate.”

It is puzzling how exercising authority can be

legitimate because it appears to severely violate individual

autonomy, understood as the ability to lead a life

independently of anyone else’s direction. By making laws

and forcing people to comply with them, states appear to be

directly controlling people’s lives and thus clearly

violating their autonomy. Ordinarily, autonomy violations

seem to be wrongful, such as when one individual coerces

another or deceives her. How can a commitment to the value

of individual autonomy be reconciled with the need for

governance?10

According to a long tradition in liberal political

thought, it is possible for authority to be exercised in

ways that still show respect for individual autonomy, thus

10 For a recent presentation of this problem, see Michael Blake, “Distributive Justice, State Coercion, and Autonomy,” Philosophy & Public Affairs 30 (2001): 257-296. Classic discussions may be found in John Locke, Two Treatises of Government (New York: Cambridge University Press, 1998) and Jean-Jacques Rousseau, The Social Contract(New York: Cambridge University Press, 1997).

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making the exercise of authority legitimate.11 Some

familiar proposals for achieving this include, for instance,

limiting the reach of authority so that individuals are left

free to make certain key decisions about their own lives.12

For example, the right to freedom of religion is often

emphasized because it allow individuals the opportunity to

make decisions for themselves about whether and how to

worship a deity, a crucial decision in any person’s life,

without interference by the state.

For our purposes, there are two other familiar ways of

helping to reconcile authority and autonomy that are

especially relevant. The first familiar constraint is the

rule of law, which ensures that individuals are given an

opportunity to make plans for themselves within the

constraints set by the law.13 Some standard elements of the

11 As in the works cited in the previous footnote. 12 See, for instance, Thomas Scanlon’s argument that authorities must respect freedom of speech if they are to be legitimate in “ATheory of Freedom of Expression,” Philosophy and Public Affairs 1 (1972): 204-226. 13 For a key argument that the rule of law is needed to reconcile authority and autonomy, see, for instance, Friedrich Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), Chapts. 9-10.

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rule of law are the requirement that laws be announced ex

ante (rather than after people have committed infractions),

made public (as opposed to kept secret), general in form (as

opposed to targeting specific individuals), and relatively

stable (as opposed to frequently fluctuating in content).

What exactly do these elements have to do with

autonomy? As Hayek emphasized, the rule of law ensures that

individuals are able to plan their lives around potential

legal sanctions.14 Because laws are known to them in

advance, and remain reasonably stable over time, individuals

are able to work out which actions they can perform without

violating the law. Thus, they are able to make and carry

out plans of their own while avoiding having the state

suddenly intervene in their lives by sanctioning them. When

the rule of law is in place, authority is exercised in a way

that still allows individuals some ability to make important

choices for themselves about how to lead their lives, rather

than having to submit entirely to the direction of the

state.

14 Ibid.

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A second familiar proposal for helping to reconcile

autonomy and authority is using the law to establish for

each individual a private sphere within which she is able to

make decisions for herself about how to lead her life. For

instance, establishing rights to particular resources is

often thought to be important in this context. When

combined with the rule of law, these policies ensure that

individuals are not only able to avoid sanctions by planning

accordingly but also that they gain a set of what Rawls

called “legitimate expectations.”15 Because there is a set

of stable, consistently applied, general rules in place,

individuals gain the ability to rely on others acting within

those rules. And the content of those rules establishes for

each individual a sphere of personal decision-making with

which she can rely on others not to interfere. For

instance, by having rules that establish individual

property, individuals are able to acquire resources while

feeling secure in the knowledge that others will not

15 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1999), p. 207.

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interfere with their use of those resources.16 Thus, they

can make long-term plans that involve committing those

resources to particular uses. So while authority presents a

threat to individual autonomy, it also can be used to

enhance individual autonomy by giving each individual a

secure private sphere in which she can act independently.

This helps to make the exercise of authority consistent with

respect for autonomy because authority is being used

precisely to help secure autonomy.

In sum, having the rule of law and an established

private sphere in place helps to legitimate authority,

despite its apparent conflict with individual autonomy,

because, first, it mitigates the impact of legal sanctions

on individual autonomy, and second, it ensures that those

restrictions also help to enhance individual autonomy by

giving individuals a sphere within which they can securely

make plans without interference by others.

16 Of course, there is significant debate about exactly which economic system is required, but we can set aside those details for present purposes.

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3. The Right to Remain

We have just seen that some important liberal rights

can be explained in a way that does not appeal to social

membership or sheer individual interests. The reason

certain individuals must be granted these rights is that

otherwise the authority the state exercises over them will

be illegitimate. This approach emphasizes the fact of state

coercion over an individual rather than the ties she has

formed with other members of society, so it is not grounded

in the importance of social membership. The reason these

particular individuals must be granted the relevant rights

is not simply that it will be good for them, or serve their

interests, but that otherwise those individuals will be

wronged by the exercise of authority over them. So there is

a familiar and powerful general approach to explaining

people’s rights against the state that appeals to something

other than social membership or sheer individual interests.

Can this alternative approach explain the right that we

are most concerned with here, the right to remain? I’m now

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going to argue that it can. The right to remain, I will

argue, is also an important condition needed to guarantee

that the exercise of authority is legitimate. That right

too, I will explain, is needed to ensure that authority is

exercised in a way that still respects individual autonomy.

Consider again the two ways I discussed above of

helping to reconcile authority and autonomy. First, we can

ensure that individuals can plan around potential state

sanctions, thus avoiding having the state suddenly interfere

in their lives. Since they know what the content of the law

is, for instance, they are able to make plans that they know

will not be interrupted by time in prison. Someone who

lacks the right to remain lacks this protection from state

intervention. Being removed from the territory would be a

very large change in the direction of one’s life, and

without the right to remain one cannot make plans that are

secure from this potentially very large disruption.

Second, we can use the law to create for individuals a

sphere in which they can act independently, secure from the

inference of others. The right to remain is also essential

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if the law is to play this role. Consider again rights to

resources, which enable individuals to commit certain

objects to uses that will serve their long-term plans.

Rights to resources are only able to play this role if

individuals possess the right to remain. The plans people

have for their property are typically territorially bound.

For instance, suppose that I decide to build a church for my

community. My plans include both building the physical

structure and helping to integrate it into the broader

community. I will only be able to follow through on these

plans if I am able to remain within the territory. If I am

forced to leave, then I will be severely hindered in my

ability to carry out these plans since it will be very

difficult for me to oversee or participate in the building

of the church. And it will make it impossible for me to

attend church functions, ensure that they are run

successfully, and so on. Many other plans that form part of

ordinary lives are also territorially bound, as the example

we just looked at suggests.

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Thus, on the face of it, granting the right to remain

is a necessary component of some familiar strategies for

reconciling authority and autonomy. This explains why we

treat the right to remain as a basic right of citizenship.

But what about migrants? Does this argument apply to them?

If someone is present within a political territory,

then even if she arrived there as a migrant, she is subject

to the authority of the state, and thus her autonomy is

under threat. We might expect, then, that migrants too must

be granted whatever rights citizens are granted in order to

respect their autonomy. Yet in practice states distinguish

between different kinds of migrants, such as those on

temporary student VISAs and those who become permanent

residents, and states grant migrants quite different

packages of rights depending on their status. For instance,

only certain migrants are granted access to various welfare

benefits. One aspect of this is that only certain migrants,

such as those who become permanent residents, are generally

granted the right to remain. Furthermore, these

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distinctions seem perfectly acceptable: surely the tourist

and the long-term resident can be treated differently?

Can the autonomy approach explain why? To see that it

can, it will help to consider some different ways in which

someone can lack the right to remain.

First, consider someone whose stay is limited because

it has a fixed length. It seems perfectly compatible with

autonomy for someone to be present in the territory for

just, say, a few years and know that she will have to leave

at the end. Students, for instance, often study abroad for

that length of time and then depart. Five years is a

relatively short time period in an ordinary human life, and

it is perfectly possible to treat five years somewhere as a

mere “visit.” The student can reasonably treat her stay in

the host country as largely a means to carrying out the main

body of her life elsewhere, gaining the skills necessary to

carry out whatever career path she intends to follow in her

home state.

It seems much more troubling, however, if someone is

staying in a country for a much longer period but has to

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leave at the end of it. For instance, suppose that someone

comes to a country to work and is granted leave to stay but

must depart after twenty years (I do not know of any

contemporary liberal democracy that actually offers this

sort of very long-term “temporary” worker scheme). Twenty

years is long enough in an ordinary human life that someone

cannot treat it as part of a mere visit. Yet she is also

not able to ever fully settle in the host country, knowing

that she will eventually have to leave. To exercise

autonomy someone must be able to make and execute settled

plans that stretch out over time independently of other

people’s direction.

Now, when someone is on a twenty year temporary work

scheme there is no one telling her to make plans with a

particular content; no-one telling her, say, to adopt a

particular religion. So no one is in charge of her life in

that sense. But she is in a situation where other people

are controlling her ability to make long-term plans at all and

that seems incompatible with autonomy. Now, of course, some

people live autonomous lives that involve few long-term

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plans, and many people leave the country where they live in

the middle of their adulthood and still lead autonomous

lives. My point is not that the disruption of moving is

always incompatible with autonomy, but that it seems

incompatible with autonomy to be in a position where other

people have decreed that you will have to leave even after a

long period of residence and thus have foreclosed the option

of making long-term plans in the place where you live.

Second, consider someone who is on probation. They are

told that they can remain in the country, but that they will

have to leave if they violate the law. Permanent residents

to the United States are in something like this position.

They have been granted indefinite leave to stay in the U.S.,

so there is no specific time period after which they will

have to leave, but if they commit certain crimes they can be

deported. After five years they have the option of

naturalizing so that they are no longer on probation.

This temporary probation seems compatible with

autonomy. For one thing, it seems permissible to tell

someone that they can only stay in the country for five

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years because, as I explained earlier, someone can,

compatible with autonomy, make plans that have a five year

end point. And so it seems that someone can similarly make

plans based on the contingency that they might have to leave

if they end up committing a crime.

It seems different, however, to put someone on

probation for her entire life, with no option of shifting

from that status. For instance, suppose someone is told

that she can remain indefinitely but will always be on

probation. A single instance of convicted drug possession

or shoplifting (both crimes that can trigger deportation in

the U.S.) will be sufficient to trigger her removal. In

that case, she must always live subject to the concern that

the state might suddenly uproot her life. Living this way

for your entire life seems to be incompatible with autonomy,

because you are always at the mercy of the state’s decision

about whether to remove you or not. The state again does

not determine the content of your plans, but it maintains a

great power over your ability to keep pursuing the ones you

may make.

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Now, it might be said that there is no lack of autonomy

here because someone can always simply avoid committing a

crime. And, of course, ordinary citizens also face

incarceration for committing crimes. Clearly it matters

substantially which crimes can get someone removed. It is

hardly a large imposition for someone to have to avoid

murdering others, but avoiding drugs and shoplifting seems

different. We know that people are subject to various

impulses to break the law, especially when they are down on

their luck. So if lesser crimes are grounds for removal,

then a moment’s careless or reckless behavior can lead to

the enormous cost of permanent removal. So, probation under

these circumstances does mean that many people will have to

worry about potential deportation even if they would never,

say, inflict calculated harm on others.

Furthermore, it is not the case that people only get

convicted for crimes that they actually committed. So

someone who is on probation will have to take care to make

sure that she not only doesn’t commit a crime but never

creates even the appearance that she may have: as well as

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avoiding possession of drugs herself, for instance, she

might try to avoid being anywhere near anyone who does take

drugs.

Of course, citizens too face punishment for committing

crimes and are sometimes mistakenly convicted. Whatever

limitation of freedom this results in may be an acceptable

part of a just system of criminal law. But for a migrant on

probation the consequences of being convicted of a minor

crime are much more significant. And so she must take many

extra precautions that the ordinary citizen can reasonably

set aside.

Third, suppose that someone is admitted as an “at will”

migrant (as I will call them). She is allowed entry into

the country but may be asked to leave at any time. For

instance, perhaps she entered under conditions where it was

economically desirable and politically popular to admit a

number of migrants, but if the economic or political tide

changes the government can quickly have her removed. This

would, of course, be an attractive deal for the government

of the host state, and presumably there are at least some

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(typically poor and low skilled) migrants who would be

willing to accept it, but I do not know of any liberal

democracy with a current scheme of this kind. Even tourists

are given a particular length of time during which they can

plan on remaining in the country. Entirely at-will

admission, especially for someone who will potentially be in

the state for a substantial period of time, seems clearly

unacceptable. This is surely, at least in part, because

that arrangement is incompatible with autonomy. The at-will

migrant is very limited in her ability to make long-term

plans because at any moment the state may step in and cut

those plans short.

In sum, the autonomy approach can distinguish between

ways of denying the right to remain that seem entirely

acceptable, such as offering tourists VISAs that require

someone to leave after three months, and ways that seem

unacceptable, such as admitting a worker on an entirely at

will basis for a long period. In the acceptable cases, the

government can reasonably say that it has done enough to

respect and support the autonomy of the migrant. Two types

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of consideration are relevant. First, some ways of lacking

the right to remain are more likely to compromise autonomy

than others. Someone whose stay is limited but who knows

their required date of exit is in a better position to plan

than someone who is present on at-will basis and thus unable

to plan around the day when she will have to leave: she is

better able to avoid government interference and better able

to commit her resources and so on to firm plans. Second, it

seems to matter how long someone is present in a territory

while lacking the right to remain. Relatively short stays

can reasonably be treated as mere “visits” to a country,

which are to be integrated into her long-term plans

elsewhere, but this is an unreasonable expectation for

someone who is present for a significant part of her life.

How does all of this bear on the case of unauthorized

migrants? Such migrants, whatever the conditions of their

entry, are subject to the authority of the state: they are

required to pay taxes, are punished for infractions, and so

on.17 Thus, on the face it, the government must exercise 17 You might think that unauthorized migrants do not generally bear a significant tax burden, but this is incorrect. See p. 23

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authority over these migrants in a way that is compatible

with respecting their autonomy, including the familiar

strategies for avoiding substantial inference in their lives

and for supporting their ability to make independent

choices. This requirement is reflected in the fact that

even unauthorized migrants are generally given, for

instance, the protections of the rule of law.18

But unauthorized migrants lack the right to remain and

do so in a manner that seems incompatible with exercising

autonomy. They know that their stay will likely end at a

certain point, and so they cannot make plans that will

stretch out for the rest of their lives. They are on a

particularly stark form of probation: breaking the law in

any way, even by committing a very minor infraction, such as

a traffic violation, may result in their coming to the

attention of the authorities and being deported. In fact,

below. 18 This can be seen, for instance, in the U.S. Supreme Court’s consistent judgment that all persons under the jurisdiction of the United States government are granted rights to due process and equal protection under the Fourteenth Amendment to the U.S. Constitution. See, for example, Yick Wo v. Hopkins, 118 U.S. 356 (1886) and Plyler v. Doe, 457 U.S. 202 (1982).

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they may become known to the authorities by doing things

that are entirely legal, such as going to a hospital, so

they must constantly second-guess which actions might lead

to deportation. And they are like the at-will migrant in

that they can be removed at any time and cannot know when

that time will be. The state may suddenly discover and

decide to remove them whatever actions they perform. So,

unauthorized migrants lack the right to remain in all three

of the manners that I discussed above, including the most

severe: the condition of uncertainty under which the at-will

migrant lives. Furthermore, most unauthorized migrants are

present in the United States for a substantial period of

time: the majority have been present for more than ten

years.19 Hence, there is a strong case that the majority of

unauthorized migrants in the United States are living under

19 A 2011 study by the Pew Research found that almost two-thirds of unauthorized migrants in the United States had been present for at least ten years. See Paul Taylor, Mark Hugo Lopez, Jeffrey S. Passel and Seth Motel, “Unauthorized Migrants: Length of Residency, Patterns of Parenthood,” (2011), available at http://www.pewhispanic.org/2011/12/01/unauthorized-migrants-length-of-residency-patterns-of-parenthood/.

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conditions that are incompatible with autonomy because of

their lack of the right to remain.

To conclude this section, and my central argument, we

should have a legalization program because it is necessary

to secure autonomy for unauthorized migrants. And the state

must secure their autonomy because otherwise the authority

it continues to exercise over them will be illegitimate.

4. Objections

In this section I’m going to consider some objections

to my argument. I have claimed that the autonomy of

unauthorized migrants is undermined by their lack of the

right to remain. The first set of objections I’m going to

consider, in Section 4.A, reject this step in my argument.

I have also argued that this lack of autonomy for

unauthorized migrants is morally problematic because it

undermines the legitimacy of the state’s authority over

them. The second set of objections that I’m going to

consider, in Section 4.B, accept that unauthorized migrants

27

are denied autonomy, but claim that this lack of autonomy is

not morally problematic, for instance because it is

deserved.

A. No Denial of Autonomy

I have claimed that long-term unauthorized migrants

experience a substantial lack of autonomy, most obviously

because they are under the threat of removal at any time.

According to the first objection I want to consider, this is

false. Why? One way to make this objection would be to

claim that even the at-will migrant, whose entry is

authorized but is subject to potential removal at any time,

is perfectly autonomous. Look, someone might say, it is

true that this person must lead her life in the knowledge

that she may have to leave at any point, and so will have to

be somewhat cautious about investing much in long-term

plans. But she can still make decisions about how to live

and carry them out. She can make plans that are more short

term or “hedge her bets,” making some plans contingent on

her continued stay and others not.

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It seems somewhat plausible to say that someone who is

an at-will migrant for a relatively short period can live in

a way that is compatible with autonomy. Compare, for

instance, a temporary worker who is present for a brief

period, say, a couple of years. As I briefly suggested

earlier, this person doesn’t seem to lack autonomy just

because her stay is limited in time. A couple of years is a

short enough period that someone can reasonably treat it as

time spent in preparation for continuing to lead the main

part of her life elsewhere. She can defer her central plans

with the intention of carrying them out when she returns

home, using the guest-worker period as a basis for learning

skills or gaining resources for pursuing whatever other

plans she has, or will have, in her home country. So when

someone is invited to such a guest-worker program it is not

the case that the state ends up in control of her life

plans.

Similarly, an at-will migrant can reasonably treat a

brief period in the host state purely instrumentally, not

intending to lead the main body of her life there. Her

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position is more precarious than the guest-worker’s: the

latter is at least able to make some plans that she knows

she will have enough time to carry out during her stay,

whereas the at-will migrant faces the constant threat of

removal. But even so, for a short time she can avoid making

major plans and just try to get as much out of her stay as

she can until she is removed. Living like this for one’s

whole life, always subject to the threat of state

intervention, seems quite different: it really does seem to

be incompatible with autonomy.

The fact that someone could adapt somewhat to this

situation by adopting only plans that won’t be upset doesn’t

seem sufficient to change this. We generally think that to

be autonomous an individual must at least have the option of

making more settled plans independently of outside

intervention. For instance, we think that it is important

for the laws of a country to be at least somewhat

predictable so that people can potentially make long-term

plans, without the threat of radical changes in the law that

would make those plans impossible. We think this even

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though there are some people whose lifestyle would be

perfectly compatible with unpredictable laws. Thus, it does

not seem to compromise the freedom of unauthorized migrants

if they live for a brief period under threat of deportation,

but it does seem to if they face that threat for a large

portion of their lives.

A second way to make this objection says that though

the at-will authorized migrant (as well as, perhaps, the

limited stay migrant and the probationary migrant) lacks

autonomy there is something special about the unauthorized

migrant which means that she really is autonomous. What

could the difference be? One difference is that the

unauthorized migrant’s entry was wrongful (at least in the

case of adults who voluntarily moved). But why should this

affect how autonomous she is right now? What makes someone

autonomous or not is her ability to form and carry out plans

independently of others. Both the at-will migrant and the

unauthorized migrant are in a situation where their ability

to do so is starkly limited. They just got into this

situation in different ways.

31

Of course, it might be said that the constraints on the

unauthorized migrant’s plans are morally different because

they are, say, deserved, or otherwise morally appropriate.

I will return to that suggestion later. For now I just want

to point out that even if they are deserved this does not

seem to affect whether they constitute constraints.

Borrowing from a similar point made by G.A. Cohen, if we say

that morally deserved constraints do not really reduce

autonomy, then we must accept the absurd result that a

justly imprisoned prisoner in no way lacks autonomy, even as

she sits in a small state-appointment cell.20 A morally

deserved lack of autonomy is still a lack of autonomy.

B. Acceptable Denial of Autonomy

According to the second objection I want to consider,

unauthorized migrants are denied autonomy but their lack of

autonomy is not morally objectionable. In particular, it

20 G.A. Cohen, “Illusion about Private Property and Freedom,” in John Mepham and David-Hillel Ruben (eds.), Issues in Marxist Philosophy: Volume IV, Social and Political Philosophy (Sussex, U.K.: Harvester Press, 1981).

32

does not create any problem of legitimacy. I will consider

a few different possible reasons why this might be the case.

i. Migrant’s Consent

According to the first version of this objection, the

situation of the unauthorized migrant is acceptable because

she has consented to the conditions of her stay.

Unauthorized migrants know that their entry is considered

unlawful and they know that it can result in deportation.

So, coming to the territory constitutes consent to the lack

of autonomy that accompanies the threat of deportation.

Thus, state restrictions on their freedom do not wrong them,

because they have waived their right to having their

autonomy respected.

This objection of course does not apply to the children

of unauthorized migrants, who did not choose to come to the

territory and thus did not consent to any of these

conditions. As regards adult unauthorized migrants, even if

they have given meaningful consent to these conditions, that

is not sufficient to render them acceptable.21 There are 21 Rawls makes a similar claim that consent does not legitimate unjust arrangements: “…unjust social arrangements are themselves

33

some rights that we think migrants, including unauthorized

migrants, must be granted irrespective of their consent.

These include, for instance, the right to police protection

and basic liberties of speech and religion. Other rights,

we think, can be waived, at least during a short-term stay.

For instance, we think that tourists, short-term workers

etc. can consent to living in the territory without the

right to vote.

What distinguishes these rights? If we consider the

most obvious case of a right that cannot be waived, the

right not to be enslaved, considerations of autonomy seem to

be central. We think that because slavery is a clear

violation of autonomy it cannot be rendered acceptable by

consent. Similarly, the rights that we are considering are

plausibly separated by whether they are really required to

secure autonomy for the migrant during her stay. Someone

a kind of extortion, even violence, and consent to them does not bind.” A Theory of Justice, p. 302. And Carens argues in the immigration context that “every plausible moral view sets some limits to consent.” Joseph H. Carens, “Citizenship and Civil Society: The Rights of Residents,” in Randall Hansen and Patrick Weil (eds.), Dual Nationality, Social Rights and Federal Citizenship in Europe and the US: The Reinvention of Citizenship (New York, NY: Berghahn Books, 2002), p. 115.

34

who is in the territory but has no police protection is

under constant threat of violence from others and thus

cannot be autonomous. Someone without freedom of religion

can be punished by the state for performing private rituals

that she considers her duty. This too is plausibly

sufficient by itself to violate her autonomy. By contrast,

someone who visits a country for a short time under laws

that she had no say in does not seem to be thereby denied

autonomy.

So, the relevant question seems to be whether being

present in a territory without the right to remain can

itself constitute a denial of autonomy. I have argued that

it can and that in the case of longer term unauthorized

migrants it does. Thus, their consent to potential

deportation is not sufficient to deny them the right to

remain.

Now, perhaps some will say that it is possible, at

least sometimes, to make relationships that involve serious

autonomy violation acceptable through consent. Perhaps, for

instance, there are circumstances where slavery is

35

permissible because of the slave’s consent. Even if we

accept this view, we can still insist that a very high

threshold of voluntariness must be met if these

relationships are to be made acceptable.

Let me explain what I mean by this. As Joel Feinberg

and others have emphasized, voluntariness seems to come in

degrees.22 For instance, if someone makes an agreement

under the mild influence of alcohol, then this is somewhat

voluntary, but less so than if they had made the same

agreement entirely sober. How voluntary must a particular

agreement be if it is to be binding? A lot depends, it

seems, on facts about the nature of the agreement. If the

agreement is just to come to your birthday party, then we

are less concerned that it be maximally voluntary: we do not

mind if, say, it is made without very careful deliberation

or without full knowledge of who will be at the party. By

contrast, an agreement to get married ought to be much

closer to maximally voluntary.

22 Joel Feinberg, Harm to Self (New York: Oxford University Press, 1986), Chapt. 20.

36

Plausibly, if we are considering consent to a

relationship that involves giving up very significant

autonomy, then the standard of voluntariness that must be

met is extremely high. The asymmetry in these relationships

of one person having to obey another is on its face morally

very problematic, so it is surely important that the parties

to them enter completely of their own volition. Similarly,

any consent to their lack of the right to remain by the

unauthorized migrants would have to meet a very high

standard of voluntariness.

Is that standard met? A couple of factors suggest that

it is not. First, for most migrants the terms of their stay

were very unclear at the time they entered. On the one

hand, the U.S. government expresses the message that

crossing the border without the appropriate documents is

legally prohibited, and this might suggest that if they

enter without those documents they will always be subject to

potential deportation. But, on the other hand, the U.S.

government has also taken actions that might reasonably be

taken to indicate a willingness to periodically grant the

37

right to remain to large numbers of unauthorized migrants.

For instance, in 1986 the government issued an amnesty that

legalized more than two million unauthorized migrants, and

recently there has been substantial debate about a new

amnesty for the following generation of unauthorized

migrants.23 This “mixed message” is exacerbated by the fact

that there is significant demand within the United States

for the labor of unauthorized workers. For instance, prior

to the recession of 2008, the rate of employment for male

unauthorized migrants was eighty percent.24 This means that

U.S. society as a whole has at least partly encouraged

unauthorized migrants to settle. Thus, it is highly

questionable to say that the current generation of

unauthorized migrants entered with the clear expectation

23 See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat.3359. For further argument that the government presents a mixed message, see Adam Cox and Eric Posner, “The Second Order Structure of Immigration Law,” Stanford Law Review 59 (2007): 809-856, at 846-847. 24 See Theodore McCarrick, “Bring unauthorized workers out of the shadows,” Washington Post Sept. 1, 2013, available at: http://www.washingtonpost.com/opinions/bring-unauthorized-workers-out-of-the-shadows/2013/09/01/fac0ef2e-0e92-11e3-bdf6-e4fc677d94a1_story.html

38

that the “terms” of their stay included permanent

vulnerability to deportation. This reduces the degree to

which they voluntarily accepted living without the right to

remain.

Second, it is clear that many unauthorized migrants

travel to the U.S. at least in significant part because of

crucial economic necessities. For instance, almost half of

all Mexican migrants to the U.S. come from rural parts of

Mexico, even though only about a quarter of Mexicans live in

rural areas.25 And rural Mexico is especially poor, with

more than half of its residents living in poverty and twenty

five percent living in extreme poverty.26 We generally

think that when someone enters an arrangement out of

significant economic or other necessity their entry is less

than fully voluntary. For instance, suppose that someone is

drowning and I offer them the following deal: “I will rescue

you, but only if you agree to sell me your yacht for a

25 See, for instance, the Bread for the World poverty and immigration fact sheet at http://www.bread.org/institute/research/fact-sheets/poverty-in-mexico-fact-sheet.pdf. 26 Ibid.

39

dollar.” Clearly, their acceptance of this deal would be

very weakly voluntary. The economic necessities faced by

many unauthorized migrants similarly limit the voluntariness

of their consent to the conditions of their stay in the U.S.

In sum, then, the standard of voluntariness required to

give up the right to autonomy is very high and unlikely to

be met in the case of unauthorized migrants.

ii. Desert and Punishment

The consent argument just considered relies on the claim

that unauthorized migrants chose to come to the United

States. A second argument focuses on the fact that their

entry was not just voluntary but wrongful. According to this

argument, it is acceptable to deny their autonomy because

unauthorized migrants deserve to be under threat of

deportation, and thus to suffer any autonomy denial this

involves.

Is this what unauthorized migrants deserve? The key

question here, it seems to me, is how much punishment

unauthorized migrants deserve (assuming that they deserve

40

any): what is a proportionate response to their

wrongdoing?27 To answer this question fully we would need

to establish exactly what makes it wrong for someone to

enter without authorization, and that would require a much

longer discussion of the literature on closed borders and so

on. But there is a strong two-part strategy that can be

used plausibly to argue that further punishment is not

warranted for those who have been living under threat of

deportation for some time.

The first part of the strategy is already complete: it

consists in showing how significant the impact on someone’s

autonomy is if they live under threat of deportation for,

say, ten years. This means that for them to deserve further

penalties the wrong of unauthorized entry would have to be

very significant. The onus is on someone who wants to

justify such penalties to show that the wrong is significant

enough to warrant them.

27 Carens also suggests that the question of proportionality is central to whether unauthorized migrants deserve to be deported/live under threat of deportation. Joseph Carens, Immigrants and the Right to Stay (Cambridge: MIT Press, 2010), pp. 43-44.

41

The second part of the strategy is to suggest reasons for

thinking that the wrong of unauthorized entry is unlikely to

meet such a strict condition: it is unlikely to have been

that significant. The most familiar reason for thinking

that unauthorized entry is wrong is that it can set back the

interests of the host state, including its interests in

conserving its culture (which may be modified by

immigration, for instance through changes in language use),

conserving resources for its own citizens (resources which

may be used by unauthorized migrants, who have access to,

say, elementary education), and promoting equality among

citizens (which may be prevented if, say, the wages of less

well-off citizens decrease through unauthorized

immigration).28

Three kinds of argument can be given to show that

unauthorized migrants do not have a substantially wrongful

impact on the host state’s interests. First, and most

28 For important interest-based defenses of the state’s right to control its borders, see Michael Walzer, Spheres of Justice (New York: Basic Books, 1983) and David Miller, ‘Immigration: The Case for Limits’, in Contemporary Debates in Applied Ethics, Eds. Andrew Cohen andChristopher Heath Wellman (Oxford: Blackwell, 2005): 191–206.

42

obviously, one can question how great the impact of

unauthorized immigration really is on the interests of the

host state. For instance, while unauthorized migrants are

often said to use up resources, their overall fiscal impact

is typically not negative. For instance, a study in 2006 by

the Texas State Comptroller found that "the absence of the

estimated 1.4 million unauthorized migrants in Texas in

fiscal 2005 would have been a loss to our gross state

product of $17.7 billion. Unauthorized migrants produced

$1.58 billion in state revenues, which exceeded the $1.16

billion in state services they received."29 This is not

surprising. Their work often makes products cheaper for

consumers in the U.S.; and they pay sales and property taxes

and many pay income tax. Furthermore, a legalization

program could be combined with steps to recover any lost

taxes from unauthorized migrants.

29 Catherine Keeton Strayhorn, “Unauthorized Migrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy”(2006), available at http://www.cpa.state.tx.us/specialrpt/unauthorized/unauthorized.pdf, accessed on Sept. 23, 2013.

43

Second, one can argue that the interests of states are

more limited than it might first appear: that certain goals

are not legitimate targets of political policy. For

instance, there may be certain cultural goals that states

may not aim at. In the United States, for example, it is

arguable that the government may not aim to limit Latino

cultural influence in order to promote an Anglo-Saxon

culture that is “genuinely American.” To do so would be to

demean the many current citizens and authorized resident

migrants who share in and identify with aspects of Latino

culture. So, even if unauthorized migration has some

cultural impact it may not be legitimate for a state to try

to limit that impact.

Third, even when unauthorized migration leads to a

setback of a given interest, one can question how much

responsibility for that setback really lies with the

unauthorized migrants themselves. For instance, suppose

that unauthorized migration has a negative impact on

equality between citizens (and other authorized residents)

because, say, it decreases the wages of low-skilled workers.

44

We might all the same ask whether the blame for this outcome

falls mainly with the unauthorized migrants. Plausibly, the

state can take steps to offset wage inequalities caused by

immigration (of whatever kind). Losses to low-skilled

citizen workers are typically offset by gains to employers

and consumers. The state could thus take steps to transfer

resources, including the additional resources that it gains

from the presence of the migrants, to the workers who lose

out.30 Furthermore, if, as we have been assuming, equality

is important, then such transfers are likely demanded by

justice. So we may well place the primary responsibility

for existing wage inequalities with the state rather than

with unauthorized migrants, whose presence only affects

inequality because the state is failing in its duties of

justice.

I have not surveyed all possible state interests here,

but I think it is plausible that these three arguments can

be used to show that long-term unauthorized migrants have

30 See Howard Chang, “Guest Workers and Justice in a Second-Best World,” University of Dayton Law Review 34 (2008): 3-14 for a similar proposal for limiting the impact of immigration on low-skilled workers.

45

not committed a wrong grave enough to warrant any punishment

beyond the threat of deportation under which they have

already lived. Now, some authors have recently suggested

that what justifies states in closing their borders (and

thus, presumably, makes unauthorized entry wrong) is not

that it sets back interests of the state, but that it

imposes obligations on the host state to which it (and its

citizens) have not consented. Michael Blake, for instance,

suggests that “we have a presumptive right to be free from

others imposing obligations on us without our consent.”31

What obligations do unauthorized migrants impose on the

state? We can distinguish between obligations that arise as

soon as they cross the border, such as the obligation to

provide them with police protection, and obligations that

arise after a period of (perhaps lengthy) residence, such as

the obligation to provide them with a voice in political

decision-making.

Let us consider these in turn. First, the obligations

that arise upon entry, such as providing police protection,31 Michael Blake, “Immigration, Jurisdiction, and Exclusion,” Philosophy and Public Affairs 41 (2013): 1-28, 13.

46

emergency health-care, and so on.32 It is surely some sort

of imposition to have to provide these things. But we can

still ask how great an imposition it is, and some of the

considerations pointed to earlier suggest that it is not

enormous: the costs of providing these things seems to be

off-set by other contributions of unauthorized migrants.

Nor does providing them with these basic rights create any

great need for substantial deliberation or for

reorganization of U.S. life: the same mechanisms for

accessing emergency services that are already available to

citizens and other aliens are simply extended to

unauthorized migrants.

Second, consider obligations that are acquired after a

period of residence, such as the obligation to provide a

political voice, welfare rights, and so on.33 Might

unauthorized immigration be very seriously wrong because the

state will eventually have to provide these things to

migrants who are present for long enough? We might doubt,32 These are the obligations focused on by Blake, ibid.. 33 Christopher Heath Wellman focuses on this category of obligations in “Immigration and Freedom of Association,” Ethics 119(2008): 109–41.

47

for reasons similar to those just discussed, that providing

those things would be a very serious imposition; but, there

is also a more basic issue here. The obligations we are

currently considering are obligations to provide the central

rights of citizenship, such as the right to vote, welfare

rights, and so on. The right to stay is plausibly one of

these central rights of citizenship. So this approach to

the wrongness of unauthorized entry in fact entails the point

I have been arguing for: that the right to stay should be

granted to long-term residents, including unauthorized

residents.

In sum, whichever theory of wrongful entry we adopt, it

seems unlikely that continuing substantial autonomy denial

is proportionate to the wrong of unauthorized entry. This

concludes my reply to the objection that unfreedom of the

unauthorized is justified because it is a fitting response

to their wrongful entry.

iii. The Trespass Analogy

A final objection that I think motivates many opponents

of legalization is the idea that wrongful entry should be

48

treated as analogous with trespass on private property (this

objection, again, would not apply to those who entered the

United States as children, and thus cannot be held

responsible for their presence). The appropriate response

to trespass, the thought goes, is simply to remove the

trespasser from the relevant space. This might not be a

punishment, as defenders of the previous objection propose,

but simply a way of fixing the wrong of their unjust

presence on the property. And this is the appropriate

response, it might be said, however long the trespasser has

been on the property.

States, according to this argument, have ownership rights

over the territory they exercise jurisdiction over. Thus,

unauthorized migrants are unjustly occupying parts of that

territory and can be removed at any time in order to correct

their wrongful presence.

There are two plausible responses to this objection. The

first is to point out that even if we take seriously the

analogy between unauthorized migrants and trespassers on

private property there may still be a good case for

49

legalization. Those who violate private property rights,

for instance by squatting, can typically gain (after a

sufficiently long period of time) title to remain where they

are through the common-law rule of “adverse possession.”

Similarly, it might be said that long-term unauthorized

migrants have acquired some title to remain because of their

past occupancy. I will not pursue this response in further

detail because the adverse possession rule is somewhat

controversial, despite its firm history in the law. 34

A second, more fundamental, response is to deny that the

analogy is sound. One can point to a morally relevant

difference between states and private property owners: the

former and not the latter exercise authority over those who

are within their territory. If I own an apartment, then I

may try to remove squatters, but I will not try to make

rules governing their lives and issue punishments for

infractions. I have argued that states can only

legitimately exercise such authority if certain conditions

34 For a further discussion of the rule and its relation to unauthorized migrants, see Mathias Risse, On Global Justice (Princeton: Princeton University Press, 2012), pp. 165-166.

50

are met, including granting to long-term residents the right

to remain. So, given their exercise of authority, states

are required to grant certain rights to unauthorized

migrants that private property owners may not have to grant

to trespassers.

Now, someone might reply that states can do no wrong by

exercising authority over those who wrongfully enter their

territory because, as owners of that territory, they are

entitled to do as they please within it. This reply rests

on a mistaken understanding of property rights. Those who

own private property possess the right to use that property

as they wish and the right that others not occupy that

property. These property rights do not themselves, however,

confer on them the right to exercise authority over any

other persons, even people who are on their territory.35 For

instance, even if someone is squatting in an apartment that

I own this does not give me the right to make rules that

they must obey, issue punishments for transgression, and so

35 For a further defense of the distinction between ownership of things and the right to rule over people, see Locke’s discussion in Section 1.43 of the Second Treatise. John Locke, Two Treatises of Government (New York: Cambridge University Press, 1998).

51

on. The sheer fact of ownership over a piece of land is not

sufficient to confer the right to rule over anyone present

on that land, even those who entered it without my consent.

5. Policy Implications

I have been defending legalization for unauthorized

migrants who have been settled in the United States for a

significant period of time on the grounds that it is

necessary to protect their autonomy and thus render the

state’s authority over them legitimate. It is, of course,

hard to say how long someone has had to be here for her to

have already experienced a significant lack of autonomy.

But ten years, say, seems easily sufficient. Consider, for

instance, standard H1-B visas for foreign workers in the

United States. The maximum duration of stay on one of these

visas is three years, extendable to six. Plausibly, part of

the reason for this limitation is that anyone staying longer

than that would have to be granted the right to stay because

her autonomy would be under serious threat. Furthermore, as

52

I have emphasized, the limits on the autonomy of the

unauthorized migrant are much greater than those on someone

whose stay has a known limited duration. The former is

vulnerable to removal at any time, in light of relatively

innocuous actions, and so on.

According to the position I have defended, like Carens’

and probably the intuitive view, the case for legalization

is greater for unauthorized migrants who have been present

for a longer period of time. But it also has some

distinctive implications. First, my view differs from

Carens’ in providing a stronger explanation for why we

should not have detailed inquiries into exactly what sort of

life a migrant has led when we are considering whether she

should be allowed to transfer to legal status: there is no

need to investigate her place in the community. The social

membership and interest arguments entail that someone should

be allowed to stay only if her social ties are strong enough

to make her a social member or to make leaving the territory

an especially severe hardship, so those argument give us

some reason to inquire into whether any given migrant has

53

actually developed strong ties. Carens can reject such

inquiries on the grounds that they might be, say, invasive,

but on my view they would also have no principled

justification since the justification for legalization is

not connected to participation in the community.

Second, my view also suggests that, in some cases,

factors other than a migrant’s length of stay might affect

the case for legalization. Consider, for instance, some of

the laws targeting unauthorized migrants passed in recent

years by states such as Arizona and Alabama.36 These laws

contained provisions, such as immigration status checks at

schools, that would discourage unauthorized migrants from

participating in many aspects of ordinary life.

Implementing such laws may well have the effect of

preventing unauthorized migrants from laying down the social

ties that create rights on the social membership approach.

But on my approach implementing them exacerbates the problem

of autonomy denial by creating new government sanctioned

36 Respectively, Arizona SB 1070 (2010) and Alabama HB 56 (2011). Federal courts have subsequently struck down significant provisions in each.

54

limitations on their ability to make independent plans, and

thus creates an especially strong case for a federal

legalization program.

Legalization, as I have defined it, is distinct from an

amnesty. The latter requires that unauthorized migrants not

only be given a status that allows them to remain and work

legally in the U.S., but also be allowed to gain all of the

rights of citizenship, such as the right to vote, access to

federal benefits, and so on. It is this stronger

requirement that Carens defends.

In recent debate, while legalization has become much more

popular, amnesties remain extremely controversial. But are

they justified? The argument that I have given requires

only legalization. It shows that we must get unauthorized

migrants out of their precarious circumstance of being

constantly vulnerable to deportation. It is silent on

whether they must also be granted the right to vote, and so

on. Of course this does not mean that further arguments can

not be given for amnesties, or at least a “path to

citizenship,” allowing unauthorized migrants to naturalize

55

after a sufficient period of legal status, paying fees, and

so on.37 But it does mean that there is a strong case for

legalization that can be made without immediately committing

us to the more controversial position that amnesties are

required.

6. Conclusion

In conclusion, we have seen that even if the familiar

social membership and interest arguments fail, there is an

independent argument for legalization: the autonomy

argument. Unlike the existing arguments, which rest on the

social ties of migrants or their sheer interest in

remaining, the autonomy argument rests on the conditions

needed for the exercise of authority over unauthorized

migrants to be compatible with respect for their autonomy

and thus legitimate. Those conditions include, I have

argued, granting unauthorized migrants the right to remain.

We have also seen that the autonomy argument can be defended37 For a further discussion of conferral of citizenship, see Adam Cox and Adam Hosein, “Immigration and Equality” (manuscript).

56

against several objections, including the claim that the

authority exercised over them does not violate their

autonomy and the familiar objections to legalization from

consent, desert, and analogy with trespass.

Like the existing arguments for legalization, the

autonomy argument suggests that legalization is required for

long-term unauthorized migrants. But the autonomy argument

also has some distinctive policy implications. It requires

the state to legalize all long-term unauthorized migrants,

without them having to show that they have developed any

substantial social ties. And it suggests that certain

states policies, such as Arizona’s SB 1070, make the case

for a federal legalization program especially pressing.

Thus, the autonomy argument may be used to justify

legalization for a broader variety of migrants.

Adam Omar Hosein

University of Colorado, Boulder

adam.hosein@colorado.edu

57