On a recent episode of the Mises Institute’s Human Action Podcast, guest Dave Smith laid out his framework to host Bob Murphy to justify his position for the government’s restriction on immigration and border management as a “second-best” solution until a libertarian society is achieved. Smith summarized his position by setting up an example using Gramercy Park, a private park only accessible by the residents of the surrounding affluent neighborhood.
It would be of no surprise to any libertarian that Gramercy Park is a beautiful place. Since its access is restricted to only the people who live nearby and pay a fee, it has been able to remain well-maintained over its long history.
If, however, the state came in and seized control of Gramercy Park from the rightful property owners, how should libertarians judge the further actions of the state? With the understanding that any libertarian would say that the state should return control back to the property owners, Smith argues that libertarians ought to support the state maintaining the rules already in place instead of considering the property unowned and removing restrictions on its use that don’t violate the Non-Aggression Principle. The latter would all but certainly lead to non-residents using the park—quite possibly bums and vagrants (to borrow some terms)—and with a little bit of imagination and an understanding of the tragedy of the commons, we can easily predict that the park would fall into a state of disrepair up to the point of being ruined.
Smith argues that because we can agree that it would be better for the state to maintain the restrictions on Gramercy Park, then it is reasonable for the state to maintain some restrictions on the public property currently with an illegitimate ownership claim by the state such as a restriction on immigration.
If we only consider the specific example of the Gramercy Park seizure by the state, Smith would be correct, but we need to first understand why that is the case. Why should the state maintain the rules? It is because nullifying the rules would be a further property rights violation of the paying members of the park. The state would have no authority to change the rules agreed upon by the rightful owners and users carte blanche. The state would likely have no authority to negotiate rule changes with the members either (e.g. eliminate membership fees).
Furthermore, the most practical reason for not changing the rules is because the state would be liable for any damages to Gramercy Park while it was under its control. We ought to judge the actions of the state as no different than the actions of any other person or group of people since the state is just a group of people. Consider an example where I stole your car. Obviously, I ought to give it back, but while the car is in my possession, if I wreck it, I will have to pay the damages as part of my restitution to you.
Smith is correct about Gramercy Park because the actions of the state that he rejects are criminal activities, i.e. definite violations of property rights. However, he doesn’t adequately then apply this to the question of immigration restrictions imposed by the state.
It certainly is true that many immigrants—legal or illegal—who come to the United States end up accepting some form of welfare and plenty of government services. Does that mean we’re justified to put restrictions on immigration? Immigration by itself doesn’t constitute an aggression or property rights violation, but the taxation and inflation used to fund welfare programs and other government services quite obviously are. In a just society, no immigrant ought to receive goods and services from ill-gained sources, but we’re not in that just society. We live in a world where the government steals from us and hands it out to others. If Smith wants to claim that under our current conditions that immigration is likely to increase or at least not lesson the theft committed by the state via the welfare system and so the next best thing to eliminating that theft (which is not likely to be achieved any time soon) is to restrict immigration, then that position should be able to be applied more broadly. Quitting your job makes you more likely to end up on welfare, so should the state put restrictions on being out of work? The use of drugs and alcohol make you more likely to have financial, social, etc. struggles, so should the state engage in more regulation of those substances? A poor diet will lead to health problems, putting a greater burden on taxpayers, so should the government regulate what we eat? Families or single parents already on welfare would undoubtedly require more government assistance if they had more children (not to mention the additional costs required to send their kids to public schools), so should the government prevent women from getting pregnant?
None of those examples of behavior were criminal although some involve destructive behavior. Those behaviors—whether normal and healthy or personally destructive—become incentivized by the state welfare programs. The solution is not to further regulate the behaviors given that we have countless examples of the state trying to solve problems like rising prices, drug use, terrorism, etc. only to make them much, much worse. Even if the state had the purist intentions, it’s not possible for its members to solve the economic calculation problem and operate without the incentives of profit and loss. Hans-Hermann Hoppe acknowledged this reality when discussing how to handle immigration in Democracy: The God That Failed with: “The best one may hope for, even if it goes against the ‘nature’ of a democracy and thus is not very likely to happen, is that the democratic rulers act as if they were the personal owners of the country and as if they had to decide who to include and who to exclude from their own personal property (into their very own houses).”
The only way to fix these problems is to attack the root. Fighting symptoms wastes energy and resources and at best may only make it briefly appear that things are getting better. The more likely outcome is that fighting symptoms takes attention away from the root of the problem and causes confusion and only makes the correct medicine that much harder to take down the road.
My argument here doesn’t even rely on a perfectly strict adherence to the Non-Aggression Principle. In The Problem of Political Authority, Michael Huemer makes the case that certain “lifeboat scenarios” would justify aggression against a “peaceful” individual under two conditions: the aggression is the only practical solution and the aggression has a reasonable chance of solving the problem. Using a literal lifeboat scenario as an example, imagine being on a lifeboat with one other person where neither of you are at fault for being on the lifeboat. It springs a leak and the only chance you have of survival is if you both bail water. If the other person decides he’d rather take a nap than bail, causing your death, you’d be justified in threatening him to get him to bail water with you even though his nap would be “peaceful.” If a third person were on the boat and only two were needed to bail or if the leak slowed down enough such that only you needed to bail, then you wouldn’t be justified in threatening violence. You also wouldn’t be justified in threatening violence for something unrelated to bailing such as forcing him to sing a rendition of “The Wreck of the Edmund Fitzgerald” as you bailed.
Likewise, if other options existed to fix the welfare problem related to immigration, then resorting to additional aggression in trying to manage the border issues would not be justified. And for reasons already discussed, the aggression is not very likely to solve the problem anyway.
The other major problem with Smith’s application of the Gramercy Park example to the borders and immigration is that the situation doesn’t apply very well to the border land controlled by the state. Gramercy Park has a clear and undisputed rightful owner whose property was stolen. That’s not so obvious or even the case for a lot of land across the United States where the state has more or less claimed ownership and prevented people from homesteading it via legitimate means. As such, we have government parks, roads, schools, and all sorts of other public places to contend with. If you reject the notion that land with no legitimate owners must not restrict any activity that doesn’t violate the Non-Aggression Principle, certain pieces of public land can have pre-established uses, or easements, that prevent certain non-aggressive activities or behavior or allow people to continue certain uses of it. A government road, for example, is generally accepted by any reasonable person for driving cars on. It would be reasonable, therefore, to remove someone from a government road who decides they want to use it as a spot for a nice picnic lunch (the blacktop around noon is a good place to reheat pizza).
This is important because lots and lots of border land has the pre-established use of traveling between countries. If immigration restrictions were loosened, it would follow that more people would cross the border at these roads for the specific purpose of travel and less likely to make the much more difficult journey on foot through the wilderness on land with less obvious easements. If you want to make the case that public land ought to be used the way that the most approximate rightful owners would want to use it, then you have to contend with the awkwardness of it being happily used by people to cross between borders.
As libertarians, we should acknowledge that we don’t know what the optimal immigration and emigration rates and numbers are. Only the unfettered interactions of the market can determine that. While we don’t live in a libertarian society and don’t seem to be all that close, we should still always advocate that we move in the direction of free markets and free associations since that is the only way to get the outcomes that provide the most justice and most prosperity.