Without Draconian Action Against American Citizens, Trump’s Crackdown on the Undocumented Cannot Succeed
To get immigrants, we will need a police state that respects the rights of no one
Dear Readers:
A few days ago
restacked “State Terror,” a piece by the historian of fascism, , with this note:
What struck me was Sullivan’s plea to conservatives to resist Trump’s cruelty, authoritarianism, and fascism while also pining for an “impenetrable Southern border” and less legal immigration. Agree or disagree with Sullivan, but he is one of the sharpest conservative commentators around and has a way of packing insightful analysis with righteous indignation. But the intellectual and moral confusion that this statement reflected was unnerving. Because one only needs to open one’s eyes and look around to see that cruelty, authoritarianism, and “state terror” are the sine qua non of an effective restrictionist regime that begins with targeting immigrants and ends with targeting everyone, citizens included.
I had delivered a speech in 2018, two years into the first Trump term, laying out exactly this. Given that Sullivan’s “impenetrable Southern border” and slowing of legal immigration are both explicit Trump goals, we are reprinting an updated version of it below.
Sometimes we have a choice of good or bad means to accomplish certain ends. But these particular ends can only be accomplished by particular means that are neither benign nor benevolent. So let’s not kid ourselves.
Shikha Dalmia
Editor-in-Chief
Usually, one hears one of two arguments for liberalizing immigration—the conservative, self-interested argument or the progressive, altruistic argument. The self-interested case for immigration basically emphasizes the economic benefits of immigration for the host country. The progressive case stresses the benefits for the immigrants themselves.
But there is a third, classical liberal case, for immigration—namely that border controls and immigration restrictions lead to state violence not just against immigrants but citizens themselves. They curtail the liberties of native-borns because attempts to control outsiders inevitably result in controlling insiders as well.
So there is a self-interested but moral case for more open border policies that we should bear in mind as President Donald Trump goes to town with his anti-immigration crackdown and brings immigration to a near halt.
The Restrictionist Road to Serfdom
Nobel laureate F.A. Hayek famously argued that when government interferes with the peaceful, voluntary activity of individuals to achieve some collectivist (not collective, mind you!) end it puts its country on the Road to Serfdom. It matters little whether these ends are socialistic ones such as equality through income redistribution—or conservative ones such as cultural preservation by restricting trade and immigration. The fact of the matter is that if these restrictions leave individuals substantially worse off, they will find a way to circumvent them—unleashing all kinds of unintended consequences.
But the government’s failure to achieve its ends will not be perceived as evidence that there is something wrong with these ends—that perhaps they are out of sync with the legitimate aspirations of people. Rather, the failure will be blamed on an insufficient use of force in achieving ends that are otherwise good. Thus, an initial round of coercion inevitably spawns ever more draconian rounds, putting the country on the path to “serfdom”—or a police state.
But the question is why does government coercion inevitably have to escalate? Why doesn’t the initial crackdown succeed?
The reason is that when laws deem acts that have actual victims as “crimes,” they are for the most part self-enforcing. The government has strong buy-in from the public and the vast majority of people obey them spontaneously and automatically. Indeed, most people don’t go around killing, stealing, pillaging, and raping. So authorities have to go after only a minuscule number of violators, which in functioning polities is a manageable task.
However, it is hard to obtain that kind of automatic compliance for victimless crimes that are crimes only because the government decides to treat them as such. Too many people are either indifferent to these laws—or profit by subverting them or actively oppose them.
Think about it this way: If enough Americans really didn’t want to have anything to do with immigrants, immigrants wouldn’t come because they couldn’t survive. They wouldn’t be able to get jobs, fall in love with Americans, get married, have kids. They’d be shunned. But that is not the case. For every immigrant, there are a whole host of Americans who benefit from his/her presence. So in order to enforce this rule of law, authorities can’t rely on voluntary compliance. They have to resort to an ever-escalating, disproportionate, and therefore lawless use of force against Americans themselves. As classical liberal political theorist Chandran Kukathas notes, “Immigration controls are not merely border controls but controls on the freedom of the population residing within those borders.”
Setting aside civil wars and natural calamities, under normal circumstances market forces—the demand for the outside labor and the available supply—largely determine the rate of immigration to a destination country. When a country embraces immigration policies and they are in harmony with the natural flow, it requires the least amount of force to enforce them. The opposite leads to state terror, aka a police state.
Lessons from Arizona’s Immigration Crackdown
Before Trump came along last time around, Arizona, thanks to the intersection of aggressive state laws and federal efforts, had been the nation’s poster child for this police state logic, its aggressive crackdown on the undocumented producing untold damage to the liberties of Americans—not just poor minorities, but rich whites, not just liberals, but also Republicans.
Recall Arizona’s SB 1070—the notorious “your paper’s please” law that subjected the state’s Latino community to widespread profiling and harassment. But three years before that law was passed in 2010, Arizona embraced LAWA or the Legal Arizona Workers Act. It required businesses to use E-Verify to check the status of employees, the first state to do so and imposed “business death penalties”—the loss of operating licenses—for businesses that “knowingly” employed unauthorized immigrants. In other words, its aim was to save American jobs by shuttering American businesses! And this makes sense because if there aren’t legal avenues for immigrants to come when there is a demand for their labor, cracking down on the undocumented won’t solve the problem. You also need aggressive sanctions on employers, as Matt Yglesias recently noted.
Sheriff Joe Arpaio went to town with LAWA. (Arpaio, recall, is the notorious Arizona sheriff who put male inmates—citizens, mind you—in pink underwear and threw them in tent encampments in 100-plus degrees and once made a pregnant undocumented woman deliver a baby in shackles. He was cited for contempt for defying court orders banning the use of racial profiling, but his “good friend” Trump handed him a full pardon.) He created a “criminal employment squad” to go after restaurants, car washes, janitorial cleaning services—you name it—that might have undocumented workers in their employ. To boost his image as “tough on illegals” ahead of a reelection campaign, he used this squad to simultaneously raid not just the workplace but even homes of business owners.
His agents would swoop in, hand over anyone suspected of being undocumented to ICE, and they would arrest not only the owners of the establishment but also managers suspected of cooking the books. Over the course of a year he went after about 80 workplaces and rounded up 800 people till his reign of terror became so out-of-control that a massive outcry forced him to disband his squad. One establishment he went after was a restaurant called Uncle Sam. Its owner is a card-carrying Republican so popular with “patriots”—as blood-and-soil conservatives are called locally—that the local Republican club held its monthly meetings there. But Arpaio, to settle a vendetta, went after the restaurant owner on trumped up charges and basically ruined it. The court finally threw out the charges, but the point was to make the process the punishment.
If Trump follows Arpaio’s script, he’ll use immigration law not only to go after American businesses violating immigration laws but also those against whom he has a vendetta. Thus far, this time, Trump has not targeted businesses for immigration enforcement. But that is likely to change given his immigration czar, Stephen Miller’s, love for mandatory E-Verify that will force all employers to check the status of their workers against a federal database. Miller could also instruct the IRS to launch audit raids to identify undocumented workers on their books among other diabolical measures that only he can think of.
But employers are not the only ones hurt by federal “interior enforcement.” Ordinary Americans are too. Two thirds of the country’s population lives in what the ACLU calls a constitution-free zone. This is a 100-mile band stretching from the border to the interior where the Supreme Court has given border patrol sweeping powers to search vehicles and luggage just as it does at “ports of entry.” In effect, the border has moved inwards. Last time Trump was in office, border patrol agents would routinely stop Greyhound buses in this zone and demanding to see passengers’ papers. (Does this remind you of something?)
But consider also the plight of border communities like Arivaca in Arizona near Tucson. Arivaca is a little hamlet 11 miles from the Mexican border on the foothills of the San Luis Mountain that I visited. Its 800 residents are mostly white but there are also some Hispanics, who’ve lived there for generations. It’s surrounded by rolling hills, ravines, and meadows. It has one grocery store and a restaurant. And that’s about it.
Border Patrol has wired the Mexico-facing side of the town with satellites and sensors to detect any movement in the surrounding ravines and meadows. But 10 years ago, it decided to set up a “temporary” checkpoint on the other side of the town under the guise of gaining “operational control” of the border. The stated purpose of the checkpoint was to protect the residents from the illegal flow of drugs and migrants.
In fact, the checkpoint makes Arivaca residents feel like they are living in occupied West Bank. Anytime any Arivacan needs to leave town to take their kid to a dentist, catch a flight, go to work, they have to pass through the border checkpoint. If agents decide they want to search their car, Arivacans can either voluntarily submit and let them look and get it over and done with quickly, or they can refuse and be detained till a canine team arrives to sniff their vehicle. In principle, agents need “reasonable suspicion” to stop anyone claiming to be an American citizen. In practice, if you are driving a sedan with a closed trunk rather than an open pick-up truck, that can raise “reasonable suspicion.” If their truck has camping gear or heavy equipment, that can raise “reasonable suspicion.” It they are in a hurry and don’t make requisite small talk with checkpoint agents, that can raise “reasonable suspicion.” If they are too mouthy, that can raise “reasonable suspicion.”
There are a dozen such checkpoints in Arizona and more than a hundred nationwide.
But the liberties of Arivaca residents aren’t just violated at border checkpoints. Border agents routinely and without permission barge into the sprawling yards of ranchers, dogs in tow, to look for holed up illegals.
Swallowing the Bill of Rights
As if that’s not bad enough, under Trump last time, the agency obliterated other previously sacred legal boundaries. For example, literally every government in any country with some semblance of civilization, even many non-democracies, recognizes that “sensitive locations” such as schools, courthouses, hospitals, and churches are off-limits to enforcement action because the mission of these entities—which is to serve everyone irrespective of citizenship or social status—must be respected. But except for churches, this administration last time started picking up illegals in all these places and it is at it again. And not just illegals but also Americans “aiding and abetting” them. It arrested Scott Warren, a university professor and humanitarian worker at the “No More Deaths Camp” in the Sonora desert that administers first aid to lost border crossers in distress from dehydration or heat stroke. Warren's crime? He violated federal anti-harboring laws and let three exhausted migrants stay at the camp for three days till they recuperated rather than shooing them away immediately.
Soon after Trump returned to the Oval Office, he passed a dozen anti-immigration executive memos, including Section 1324 that uses federal anti-harboring law to potentially criminalize: a good Samaritan who gives a ride to an undocumented immigrant; a landlord who rents an apartment to them; a co-worker who tips them off about a transpiring ICE raid.
Congress has actually considered a bill that would prosecute churches and soup kitchens that offer free meals to illegals. Last time around, the Trump administration wildly cheered laws passed by states like Texas and Ohio that seek to arrest duly elected local mayors and leaders if they refuse to cooperate with federal deportation efforts or “criticize” anti-sanctuary policies, basically outlawing dissent. Arizona considered a law to freeze the assets of pro-immigration protesters.
In January, Tennessee passed a law making it a felony—punishable by up to a year in prison—for a local lawmaker, such as a school board member or a city councilperson, to vote for a local ordinance that adopts any “sanctuary city” policy of noncompliance with federal immigration law enforcement officials.
Even before Trump basically ditched due process and sent Kilmar Abrego Garcia along with 237 other hapless and helpless Latino men on U.S. military planes to El Salvador’s harsh megaprison from which the only exit is in a coffin, the feds had made detaining and deporting anyone suspected of being in the country illegally so easy that about 4,000 American citizens were getting caught in the dragnet and being deported annually. That rate can only soar under this administration.
None of this should be surprising. Such assaults on the liberties of citizens is not a bug but a feature of an aggressive immigration enforcement regime.
Immigrants are so intimately enmeshed in the American workplace and communities that the government can’t surgically excise them while leaving Americans unscathed. Behind every outsider there are insiders who benefit from him/her. Immigrants and citizens’ rights are therefore inextricably linked and government has to either respect everyone’s rights or no one’s. And in Trump’s all-out War on Immigration, the government is alarmingly choosing the second course.
Kukathas has compared immigration restrictionism to apartheid in South Africa and I would also compare it to Jim Crow. What’s common to apartheid, Jim Crow, and restrictionism is the logic of human control.
Apartheid and Jim Crow were of course characterized by strict restrictions on the movement and employment of Blacks. But the government couldn’t just ban Blacks from taking certain jobs or engaging in certain activities without also controlling the whites who wanted to hire them or marry them or engage in other activities with them. Hence in South Africa and Jim Crow, intermarriage bans affected not just Blacks but also whites. In South Africa, the government started monitoring white newspapers, books, films, and music to make sure they were not soliciting Blacks or advocating on their behalf in defiance of the state’s wishes. In Jim Crow, it wasn’t only Blacks who were thrashed and beaten and imprisoned they worked in white establishments—these establishments were fined and vandalized too.
A crackdown on immigrants—to be truly effective—can’t help but swallow the entire Bill of Rights. Citizens and non-citizens alike will all be victims of it.
One last thing from the editors…
America’s immigration system has always walked a fine line between enforcement and exploitation. Under Trump, that line has vanished. In fact, this administration’s deportation scheme—in which the U.S. can deport migrants, without due process, into El Salvador’s prison system, where they supply forced labor for El Salvador—now resembles one of the darkest chapters from America’s past. Watch
’ video in which he expounds on this very troubling historical parallel.
This is an updated version of a speech that I delivered at Open Borders Conference organized by the Free Migration Project in 2018, originally printed at Reason.
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another excellent piece - thank you Shikha!
The point about the free market ignores the fact that medical facilities are forced to treat illegal immigrants regardless of their ability to pay for services rendered, and those costs get passed on to other patients & taxpayers. There are various other subsidies provided by state and local governments. I agree entirely that the immigration enforcement apparatus is oppressive, but there would be less need for it with less of the problematic migration that would not exist under true laissez-faire.