THE RIGHT TO EXCLUDE IMMIGRANTS DOES NOT IMPLY THE RIGHT TO EXCLUDE NEWCOMERS BY BIRTH.

Author:Carnes, Thomas
 
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Recent arguments defending a state's right to restrict immigration argue from a certain notion of individual rights to a parallel collective state right to restrict immigration. (1) These so-called statist arguments for closed borders have each received their fair share of independent criticism. Recently, however, an interesting generic challenge has been advanced against statist arguments, one that, if correct, might undermine all statist arguments in one fell swoop. This challenge--call it the newcomer-by-birth objection--claims that statist arguments cannot consistently defend both their main conclusion that a state has a presumptive right to exclude prospective immigrants, and the conventional assumption that newcomers by birth ought to enjoy a right to membership upon birth. (2) If correct, all statist arguments in defense of immigration restrictions might become untenable, for they would seem to violate our intuition against the permissibility of denying membership to newcomers by birth.

This article argues that the newcomer-by-birth objection is not as problematic for statist arguments as it might seem. In what follows I briefly sketch the objection and the extent to which it applies to statist arguments. I then examine more closely the case of newcomers by birth, highlighting nuances about their situation that give reason to differentiate them from prospective immigrants in the way the newcomer-by-birth objection demands but alleges statist arguments cannot consistently do. To do this I consider the impermissibility of certain kinds of pernicious exclusion criteria with respect to prospective immigrants. I demonstrate that the view that exclusion criteria that objectionably harm members limit states with respect to their right to exclude prospective immigrants can successfully be adopted by statist arguments in response to the newcomer-by-birth objection. Ultimately I argue that excluding newcomers by birth is wrong, not because it harms the newcomers by birth, but because it objectionably harms certain current members--namely, their parents. This move will allow statist arguments to overcome the newcomer-by-birth objection in what will likely be the vast majority of cases. Any remaining cases, however, will require statist arguments to bite the proverbial bullet. Although this may initially seem an uncomfortable result, I sketch a novel argument comparing such cases to international adoption to argue that it is in fact morally benign.

I

The newcomer-by-birth objection is concerned with showing that statist arguments, insofar as they are successful, prove too much. The point that must be made is that newcomers by birth are relevantly similar to prospective immigrants such that any argument establishing a right to exclude immigrants entails a right to exclude newcomers by birth. The problem is, of course, that this result violates a widespread intuition that people ought to be guaranteed citizenship upon birth by the state into which they are born. (3) According to the objection, statist arguments entail that newcomers by birth cannot plausibly be considered members unless and until the political community into which they are born accepts them as such and confers upon them the commensurate political rights. The relevant similarity between them and prospective immigrants, then, is that both a newcomer by birth and a prospective immigrant do not have any plausible presumptive claims to territorial access or membership rights against the state into which they either seek entry or are born. And since there are statist arguments that purportedly establish the permissibility of excluding prospective immigrants, those arguments also establish the permissibility of excluding newcomers by birth, which seems morally problematic.

Before moving on to consider the merits of the newcomer-by-birth objection, I would first like to note that this is not the only sense in which scholars have argued that statist arguments prove too much. Javier Hidalgo argues that "if it is morally permissible for states to restrict immigration because they have rights to self-determination, then it is also morally permissible for states to deport and denationalize their own citizens." (4) Taking the problem of compatriot deportation and the newcomer-by-birth objection together seems to present a high hurdle for statist arguments. However, I think Hidalgo's argument is easily overcome and I will not consider it in detail here, beyond pointing out what I take to be two key failures.

All that is required to overcome Hidalgo's argument is a plausible basis on which to make a principled distinction between compatriots and nonmembers such that the ability to exclude nonmembers does not entail the ability to exclude compatriots. (Indeed, this is essentially what is required to overcome the newcomer-by-birth objection.) Hidalgo acknowledges one such basis but too hastily rejects it. The reason we can say compatriot exclusion is unjust is that it would violate the political rights held by members, in virtue of their being members. Hidalgo recognizes that "this is one reason against compatriot deportation," but maintains it is possible to deport and denationalize citizens without denying them their political rights. (5) He specifically mentions, e.g., the possibility of retaining the ability to cast absentee votes and petition government officials, but fails to mention the most important political rights: the right to run for elected office and the right to fair opportunities to occupy positions of political authority or influence that seem obviously to require one's sustained presence within the state. Effectively denying these rights would be a severe violation of political rights that could be outweighed only by the strongest of countervailing considerations. And since nonmembers could not make this claim, we have a principled distinction to defeat Hidalgo's argument.

This may not be the most promising response to Hidalgo's objection. Hidalgo is surely correct that states can exclude compatriots without denying them all their political rights, although I have suggested that they necessarily deny some fundamentally important ones through compatriot exclusion, thus rendering compatriot exclusion unjust. Hidalgo could conceivably argue that the political rights I consider "fundamentally important" are either not important enough to render their violation unjust, or are not necessarily denied by compatriot exclusion.

There is another right, though, that is necessarily violated by compatriot exclusion--namely, excluded compatriots' occupancy rights. An occupancy right is one's pre-institutional right to reside permanently in a given territory for the purposes of pursuing and executing one's life plans. (6) One can claim an occupancy right if one resides there now or has previously done so, residence there is fundamentally important to the integrity of one's life plans, and one's connection to that territory was formed through no fault of one's own. (7) These conditions seem straightforwardly to hold for the compatriots Hidalgo has in mind in his argument. If a current member of a state, who presumably has legitimately built a life in that state, can claim an occupancy right, then the state would be prohibited from excluding that member. Since only compatriots have occupancy rights that would be violated by exclusion, and not prospective immigrants, this provides another principled distinction to defeat Hidalgo's argument.

The primary advantage of this objection to Hidalgo's argument is that it would be harder to override an occupancy right than political rights. An occupancy right is centrally connected to one's ability to live a minimally decent and autonomous life, whereas political rights are only centrally connected to one's ability to engage in political participation. The former seems more fundamentally important than the latter--indeed the latter does not even become important unless the former is adequately secured--thus presenting a greater obstacle to Hidalgo's argument. Even if one could successfully refute the first objection to Hidalgo's argument offered above, it seems difficult indeed to deny that current members have occupancy rights to reside in their state.

Although I think Hidalgo's argument ultimately fails to get traction, the newcomer-by-birth objection remains standing because it is not at all clear that either of these principled distinctions can hold between prospective immigrants and newcomers by birth. Hence the power of the objection and why I move now to consider it in detail.

II

Perhaps the best known statist argument is the argument from freedom of association, advanced most prominently by Christopher Heath Wellman. Wellman argues from an individual's right to freedom of association and the correlative right to refuse to associate, to a parallel collective right on the part of states to refuse to associate...

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