The Duty to Disobey Immigration Law

1 Introduction

Many people believe that immigration restrictions are morally permissible. They think that states have rights to exclude foreigners and deport them from their territories. This view is reflected in public opinion and policy. Most states heavily restrict immigration and these immigration restrictions are often popular. But the conventional wisdom about the permissibility of immigration restrictions might be wrong. A growing number of philosophers and social scientists defend open borders. ^[1] They argue that immigration restrictions unjustly interfere with individual liberty and reinforce global poverty. Defenders of open immigration contend that the reasons in favor of immigration restrictions fail to outweigh the moral reasons in favor of free international movement. I will refer to the view that immigration restrictions are generally unjust as the revisionary view. I have defended the revisionary view elsewhere (Hidalgo 2014).

Advocates of the revisionary view have focused almost entirely on public policy. They have argued at length that states are obligated to implement policies that permit more immigration. Yet adherents of the revisionary view have neglected to consider whether their view matters for individual ethics. Does the ideal of open borders have any implications for the obligations of individual citizens? This question acquires a special urgency if open borders turn out to be politically infeasible. Many observers, including people who endorse the revisionary view, agree that free international movement is politically untenable because most people reject open borders. Joseph Carens, the leading philosophical defender of open borders, concedes that open borders are “utopian…under current conditions” (2013, p. 296) and Chandran Kukathas argues in favor of open borders while acknowledging that free migration is “entirely infeasible” (2014, p. 387). But, even if open borders are infeasible at the level of public policy, the ideal of open borders could matter for individual conduct. The truth of the revisionary view may affect how we ought to live our lives.

In this paper, I will argue that, if immigration restrictions are generally unjust, then the citizens of states that enforce these restrictions have duties to disobey the law. My argument goes like this. To an increasing extent, states are conscripting citizens to enforce immigration law by imposing legal duties on them to monitor, report, and refrain from interacting with unauthorized migrants. If the revisionary view is true, then these laws are unjust. If citizens comply with their legal duties, they contribute to violating the rights of migrants. We are obligated to refrain from contributing to rights-violations. So, citizens are obligated to disobey immigration laws. I have organized my argument as follows. In Section 2, I will explain why I believe that the revisionary view is true. In Section 3, I will argue that citizens have duties to disobey immigration law in order to avoid complicity in injustice. In Section 4, I will respond to the objection that resistance to immigration law is excessively risky and the objection that citizens have duties to obey the law. Section 5 concludes.

2 The revisionary view

In this section, I will briefly sketch the case for the revisionary view. To be clear, I will refrain from defending the ideal of open borders against critics. Political theorists have advanced important arguments for immigration restrictions and I will avoid trying to show these arguments are unsound here. My aim is merely to explain some of the reasons why I find the revisionary view to be compelling.

One influential argument for open immigration appeals to the value of freedom of movement. ^[2] Restrictions on freedom of movement interfere with freedom of association, freedom of occupational choice, and other valuable liberties. Here is an illustration. Suppose that Linda lives in Chicago and she wants to move to Los Angeles. Employers in Los Angeles are willing to hire Linda and Linda has friends and family in Los Angeles who want to live near her. But government officials decide that they will coercively stop the residents of Chicago from moving to Los Angeles. State employees physically prevent Linda from reaching her destination and they will force her to return to Chicago if they find her in Los Angeles. ^[3] Most people would regard this restriction on the freedom to move within the territory of the United States to be unjust. In restricting Linda’s freedom of movement, public officials infringe on her freedom to associate with friends and family, pursue the occupation of her choice, explore cultural opportunities that are more accessible in Los Angeles, and advance other personal projects that require moving. State officials have weighty moral reasons to respect these freedoms. Thus, officials have strong reasons to avoid restricting Linda’s freedom of movement within their state’s territory.

Yet the value of freedom of movement also grounds a powerful objection to immigration restrictions. Take Linda’s case again, but let’s change some details. Imagine that Linda wants to move to London instead of Los Angeles. Assume that people in London would want to associate with Linda if she lived there, employers would be willing to hire her, and so on. If state officials prevented Linda from immigrating, then these officials would interfere with Linda’s freedoms along with the freedoms of Britain’s citizens to interact with Linda. Perhaps the British government can permissibly make Linda wait for a period of time before granting her citizenship and access to social welfare programs. But the revisionary view says that it would be unjust for the British government to deny Linda the freedom to immigrate and permanently reside in its territory. The point applies more generally. When a state restricts immigration, this state forbids foreigners from accepting employment from its citizens or associating with its citizens on their own freely chosen terms. There are weighty moral reasons against immigration restrictions in virtue of the fact that these restrictions interfere with valuable liberties.

So, adherents of the revisionary view think that there is a presumption in favor of freedom of movement. Yet they acknowledge that this presumption can be overridden. In particular, it is plausible that the reasons to respect valuable liberties can be outweighed when interfering with these liberties is necessary to protect against grave harm. For this reason, adherents of the revisionary view concede that immigration restrictions are permissible when they prevent sufficiently bad outcomes from occurring (Carens 1987, pp. 260ff. Huemer 2010, pp. 450–4; Oberman 2016, pp. 45–50). Suppose that, if a state immediately abolished its immigration restrictions and opened its borders to foreigners, this would bring about dire consequences. Assume that open borders would cause massive overcrowding, severe environmental damage, widespread ethnic conflict, and other harms. If open borders facilitated serious harms, then the moral reasons in favor of restricting immigration may override the reasons in favor of free immigration.

But defenders of the revisionary view say that it is unlikely that most actual immigration restrictions are permissible. Contemporary immigration laws are extremely restrictive. Immigration restrictions may stop hundreds of millions of people from moving to other states. ^[4] Many people would be able to escape severe poverty, violence, oppression, and other bad conditions if states permitted more immigration. States also routinely deport a large number of migrants, such as unauthorized migrants and failed asylum-seekers. It is doubtful whether these policies have benefits that are sufficient to justify the harms that they inflict on migrants. ^[5] Perhaps there is some risk that abolishing immigration restrictions would cause grave harms and that we should take precautions to mitigate this risk. It only follows from this that states should gradually open their borders. States might permit more immigration every year until everyone who wants to immigrate can do so or we begin to observe seriously harmful outcomes. ^[6] So, while adherents of the revisionary view acknowledge that some immigration restrictions are conceivably permissible, they conclude that actual immigration restrictions are generally unjust and that states should begin dismantling them.

To sum up, my view and the view of other advocates of open immigration is that states have duties to respect individual liberty and these duties require that states abolish their immigration restrictions. Even if some immigration restrictions can be justified in rare cases, most existent immigration restrictions are likely impermissible. I will assume that the revisionary view is true for the remainder of this paper.

3 Justifying the duty to disobey

I will now argue that, if the revisionary view is true, then citizens have duties to disobey immigration laws that regulate how citizens and migrants interact with each other. My argument begins with the observation that, when states restrict immigration in practice, they do more than authorize state employees to exclude and deport foreigners. States also conscript their citizens to help enforce their immigration restrictions. Governments impose legal duties on citizens to deny unauthorized migrants access to employment, housing, and other benefits, and to monitor migrants in order to ensure that they comply with immigration laws.

Here are some examples of laws that enlist citizens in restricting immigration:

1. Most affluent democracies have laws that prohibit employers from knowingly hiring unauthorized migrants. Employers are often required to determine the immigration status of applicants before they consider them for employment and to fire workers if employers discover that they are unauthorized migrants (European Union Agency for Fundamental Rights 2014).

2. Many jurisdictions forbid private citizens from harboring unauthorized migrants. This means that landlords are prohibited from renting housing to these migrants and may be required to evict tenants if they turn out to be unauthorized migrants (Pham 2008, pp. 792f. Certain governments have penalized private citizens for providing any form of shelter to unauthorized migrants (Jain 2010).

3. Banks in Britain are required to check the immigration status of customers and deny access to bank accounts to people who are unable to prove their regular status (Aliverti 2015).

4. Companies in the United States and most of Europe are forbidden from transporting unauthorized migrants and sometimes need to screen their passengers to satisfy this requirement (Guiraudon 2006). For example, it is illegal for airlines to fly migrants across borders if they lack the proper documentation and busing companies may be obligated to refuse to sell tickets to anyone that they know or believe to be an illegal alien (Pham 2008, p. 778).

5. States now compel government employees that were formerly uninvolved in immigration enforcement to monitor and report migrants to immigration agents. Universities in the United Kingdom must monitor the immigration status of their students and report them to the government if they miss more than ten consecutive working days (Walsh 2014, p. 245). Registrars are also obliged to report “sham” marriages to immigration agents if they suspect that people are getting married solely in order to secure residency in a country. Some jurisdictions in the United States require police officers to report unauthorized migrants to immigration agents.

For ease of reference, I will refer to laws like (i-v) that impose legal obligations on citizens to monitor, report, or refrain from interacting with unauthorized migrants as interaction restrictions.

Interaction restrictions are hard to justify if the revisionary view is true. Interaction restrictions are morally problematic in part because they infringe on the liberties of citizens. Yet the primary burden of interaction restrictions generally falls on unauthorized migrants. While interaction restrictions constrain the freedom of some citizens to some extent, these laws aim to entirely curtail some of the basic liberties of migrants, such as their freedom of occupational choice. So, the main reason why interaction restrictions are unjust is that they violate the rights of migrants. To explain this claim, I want to first make a more general observation about how states can violate rights. States can violate rights in at least two different ways. First, states can violate rights by prohibiting rights-holders from engaging in the activities that are protected by their rights. Second, states can forbid other people from cooperating with rights-holders to perform the actions that are protected by these rights.

Here is an example to illustrate. Suppose that the government forbids you from publishing a book that is critical of the government’s policies. Imagine that the government threatens you with punishment if you try to publish this book. Obviously, the state violates your right to free speech in this case. You have a claim-right against government interference with your speech. That is, the state is under a duty to refrain from interfering with your ability to publish your book. But the government can violate your right to free speech in another way. The government can violate your rights by prohibiting other people from publishing your book. Imagine that you lack the funds to publish your book on your own and that public officials threaten other people with punishment if they attempt to publish your book, although the government will refrain from punishing you for publishing your book. In this example, the state violates your right to free speech even though the state avoids punishing you for exercising this right.

This example suggests that the following general principle is true: if person A has a claim-right to perform some action against agent B and A can only perform this action if some other person C voluntarily cooperates with A, then A has a right that B refrain from coercively preventing C from cooperating with A to perform this action. Let’s call this: the cooperation principle. The cooperation principle can explain how the government can violate your right to free speech despite the fact that the government avoids punishing you for your speech. Your right to free speech means that you have a right against the government’s efforts to stop other people from cooperating with you to exercise this right.

The cooperation principle helps clarify why interaction restrictions are unjust as well. As I noted in Section 2, immigration restrictions are objectionable because they interfere with occupational freedom, freedom of association, and other important liberties. The same considerations that justify rights to immigrate to a state also explain why people have rights to exercise freedom of association and occupational choice in this state. If immigration restrictions are generally unjust, then unauthorized migrants have moral rights to exercise these freedoms in the states where they reside. After all, unauthorized migrants had moral rights to immigrate in the first place, but governments simply failed to respect their rights and they were forced to immigrate without official permission. Yet the existence of moral rights doesn’t depend on the government’s authorization.

If unauthorized migrants have rights to occupational freedom and freedom of association, then the cooperation principle implies that they have rights against the state’s attempts to coercively forbid other people from cooperating with migrants in order to exercise these rights. Interaction restrictions forbid employers from hiring unauthorized migrants, landlords from renting to them, companies from transporting them, and so on. These laws violate the rights of unauthorized migrants to occupational choice, freedom of contract and association, and perhaps other rights as well. If a law violates rights, then this is a strong reason to believe that this law is unjustified. Nonetheless, a law that violates rights may be all-things-considered justified if this law has a strong countervailing rationale. For example, it may be permissible to infringe on rights if doing so brings about a sufficiently good outcome. But it seems unlikely that interaction restrictions have a justification that is strong enough to outweigh the reasons to respect the rights of migrants. To explain why, let’s briefly consider some possible justifications for interaction restrictions.

Advocates of interaction restrictions argue that these laws are necessary to deter immigration and persuade migrants to leave. People often want to immigrate to find work. If states forbid employers from hiring unauthorized migrants, then foreigners will have less incentive to immigrate without authorization. States want unauthorized migrants to return home as well. Interaction restrictions raise the costs of residing in a territory and encourage migrants to leave the country. These laws also aim to protect citizens from competition from migrants in the housing and labor markets. Interaction restrictions penalize interactions that benefit unauthorized migrants and give employers and landlords incentives to benefit native citizens instead. Finally, some policymakers believe that certain interaction restrictions are necessary to prevent citizens from gaining unfair competitive advantages by interacting with unauthorized migrants (Pham 2008, p. 801). Businesses may gain a competitive advantage over other firms by violating the law and hiring unauthorized migrants. Employer sanctions attempt to stop businesses from securing these advantages.

These justifications for interaction restrictions crumble if the revisionary view is true. It is false that deterring immigration and compelling migrants to exit are morally desirable aims. If states lack rights to exclude outsiders in the first place, then states lack rights to use coercive measures to deter them from immigrating or to encourage them to leave. The same goes for the goal of protecting citizens from competition for jobs and housing. Advocates of the revisionary view argue that it is unjust for states to restrict the liberties of foreigners in order to insulate their citizens from competition. ^[7] States’ duties to respect the valuable liberties of foreigners typically defeat the moral reasons to secure economic benefits for their citizens. In addition, we should reject the view that it is unfair for businesses to hire people who have the right to work in a state. Perhaps the suggestion is that it is unfair for businesses to gain advantages over others by breaking the law. However, it only appears to be unfair to gain advantages by violating immigration laws if we have antecedent obligations to comply with these laws. If my argument in this paper is correct, we lack these obligations.

So, interaction restrictions violate rights and these laws lack good countervailing justifications. Therefore, interaction restrictions are generally unjust. Yet the injustice of interaction restrictions is transmitted through the behavior of private citizens. For interaction restrictions to be effective, citizens must comply with their legal obligations to report, monitor, or refrain from interacting with migrants. Interaction restrictions will fail to achieve their intended effects if citizens refuse to obey these requirements. For this reason, interaction restrictions make citizens complicit in wrongdoing. Let’s say that a person is complicit in wrongdoing if her actions causally facilitate the wrongdoing of another agent. ^[8] Governments are the agents that are attempting to violate the rights of migrants in the cases that I have been describing. Public officials implement the plan of restricting the liberties of these migrants by enforcing interaction restrictions. But ordinary citizens contribute to and make the government’s wrongdoing possible by complying with these laws. Interaction restrictions distribute the responsibility for violating the rights of migrants broadly among citizens.

To illustrate how citizens contribute to violating the rights of immigrants when they comply with interaction restrictions, consider the following case. Imagine that Sam owns a garment factory and he is hiring new workers. Leticia is an unauthorized migrant who is unemployed and wants a job. The state employees threaten Sam with fines if Sam knowingly hires unauthorized migrants. Government officials will forcibly take a small fraction of Sam’s income if they discover that Sam has hired Leticia, although they won’t punish Leticia if Sam hires her. Suppose that Sam hires Leticia and only later discovers that she is an unauthorized migrant. Sam then fires Leticia in order to comply with the law. ^[9]

Let’s assume that the state’s prohibition on employing unauthorized migrants is unjust in this example. The cooperation principle implies that government officials have violated Leticia’s right to occupational freedom by forbidding employers like Sam from hiring her. But this rights-violation is only possible because Sam complied with the government’s directives and took steps to prevent unauthorized migrants from working in his business. Sam is not merely culpable of an omission or failure to aid Leticia. He actively cooperates in the state’s project of violating Leticia’s rights. Sam has strong moral reasons to refrain from contributing to violating the rights of migrants. To avoid complicity in these rights-violations, he must refuse to comply with laws that require him to dismiss Leticia and other unauthorized migrants. As a result, Sam has moral reasons to disobey interaction restrictions. If these reasons are decisive, then he is morally required to disobey the law.

We can extend this basic point to interaction restrictions in general. By complying with these requirements, citizens facilitate rights-violations. Most people accept that we have strong moral reasons to avoid causing harm or facilitating the violation of the rights of other people. Furthermore, it can be wrong to contribute to rights-violations even if you lack any intention of contributing to wrongdoing. For instance, a weapons dealer might lack any intention to cause harm, but the weapons dealer nonetheless acts wrongly by selling weapons to violent criminals who will predictably use these weapons to harm other people. Similarly, citizens may lack the intention of harming migrants or violating their rights when they comply with interaction restrictions. Perhaps they even disapprove of these laws and only obey them grudgingly. But, when citizens comply with interaction restrictions, they foreseeably contribute to violating the rights of migrants and, thus, there are significant moral reasons against this compliance.

The moral reasons to refrain from contributing to violating rights are, in general, pro tanto. That is, we have moral reasons that speak against contributing to rights-violations, although other moral considerations can outweigh these reasons. The strength of the reasons to abstain from contributing to rights-violations varies depending on the importance of your contribution and the gravity of the rights-violation at stake. Suppose that a police officer reports unauthorized migrants to immigration authorities and this results in the deportation of these migrants. There are stringent moral reasons against the police officer’s actions. Assume that, if the officer had declined to report these migrants, they would have avoided deportation. So, the officer’s contribution makes a decisive difference to the outcome in which the migrants are deported. The rights at stake are also relatively weighty ones. Rights against deportation are surely among the most important rights that we possess and these rights protect urgent interests, such as our interests in living with our families. By facilitating the deportation of unauthorized migrants, the police officer contributes in a major way to violating fundamental rights. These factors explain why the officer’s actions involve grave wrongdoing.

Contrast this with another case. Imagine that the owner of a small construction business complies with the law and refuses to consider hiring any unauthorized migrants, although some migrants want to work for this business. This business owner contributes to violating the rights of these migrants as well, but the contribution of this employer to rights-violations is less bad than the police officer’s contribution. For one thing, other employers might be willing to hire unauthorized migrants. As a result, the business owner’s decision to refrain from hiring unauthorized migrants may make only a minor contribution to setting back the interests of these migrants. Moreover, while unauthorized migrants have strong interests in finding work, they often have even weightier interests in avoiding forced deportation. So, it is plausible that the employer contributes to violating less fundamental rights than does the police officer. If so, then the business owner has weaker moral reasons to refrain from complying with interaction restrictions in comparison with the officer. The upshot is that, while it is pro tanto wrong to comply with interaction restrictions in general, the seriousness of this wrongdoing depends on other factors, such as the magnitude of citizens’ contributions and the importance of the rights that are being violated.

To sum up, my argument for the duty to disobey immigration law goes like this:

1. Interaction restrictions are, in general, unjust because they violate the rights of migrants.

2. If interaction restrictions violate the rights of migrants and citizens comply with these requirements, then citizens contribute to rights-violations.

3. It is pro tanto wrong for citizens to contribute to rights-violations.

4. So, it is pro tanto wrong for citizens to comply with interaction restrictions.

I will refer to this as the contribution argument for the duty to disobey immigration laws. If the contribution argument is sound, then we have strong moral reasons to disobey interaction restrictions. But it is possible that these moral reasons are overridden by other considerations. I will now examine whether other considerations generally outweigh the moral reasons to disobey immigration law.

4 Objections

In this section, I will respond to two objections to the contribution argument.

5 Conclusion

In this paper, I have argued that we have duties to disobey immigration laws. If justice requires open borders, then states are systematically enforcing unjust immigration laws. States try to compel citizens to share complicity in the injustice of immigration restrictions. To avoid complicity in wrongdoing, citizens are obligated to violate immigration laws. Furthermore, citizens’ moral reasons to refrain from contributing to violating the rights of foreigners are, in general, undefeated by countervailing considerations. Therefore, citizens are often morally required to disobey immigration laws.

I have, in this way, answered the question of whether the ideal of open borders affects the obligations of individuals that I posed in the introduction of this paper. Perhaps a policy of open borders is infeasible and it is unlikely that states will abolish their immigration restrictions in the near term. Nonetheless, the ideal of open borders matters for individual action. In his famous essay on civil disobedience, Henry Thoreau claimed that we have duties to disobey unjust laws. Thoreau argued that, if “the machine of government…requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn” (2004/1849, pp. 315f.). I have similarly argued that citizens must refuse to lend themselves to the wrong that advocates of the revisionary view condemn. Our lives should be counter-frictions to the injustice of immigration restrictions.