The moral risks of immigration restrictions

My argument for the international governance of immigration begins with the claim that immigration restrictions are morally risky. Immigration restrictions are morally risky in part because these laws risk causing harm to foreigners. Agents can cause harm in different ways. An agent can directly inflict harm by initiating a causal sequence that results in harm to another person. If you shoot someone with your gun, then you initiate a causal sequence that results in a harmful outcome for this person. But agent can cause harm in other ways. They can cause harm by enabling harm. You enable harm to another person if you act in a manner that prevents this person from avoiding a bad state. Immigration restrictions enable harm in this sense (Huemer Reference Huemer2010). Border controls coercively prevent foreigners from avoiding harms, such as poverty and threats to their lives and liberties.Footnote ¹

Here is an illustration. Most people in Haiti are extremely poor. About 58% of Haiti’s population lives on less than $2.4 a day and 23% subsists on less than $1.23 a day (World Bank 2014, 2). Haiti has the highest infant mortality rate in the Western Hemisphere and over 30% of Haiti’s population lacks access to improved water sources (UNICEF and WHO 2014). Many Haitians want to immigrate to other countries, such as the United States. One group of economists calculate that an average, moderately educated Haitian male would earn at least six times more in the United States than he would in Haiti once they adjust for purchasing power (Clemens, Montenegro and Pritchett Reference Clemens and Pritchett2008, 4). If Haitians could immigrate to the United States, they would likely escape extreme poverty. Approximately four out of five Haitians who live above the poverty line of $10 a day already live in the United States (Clemens and Pritchett Reference Clemens, Montenegro and Pritchett2008, 411).

Other states stop Haitians from immigrating. The United States Coast Guard has stopped 114,716 Haitians who were trying to immigrate to the United States between 1982 and 2009 (Clemens Reference Clemens2010). The United States only allows about 21,000 Haitians to immigrate every year. In blocking Haitians from immigrating, border agents prevent Haitians from avoiding poverty and other harms. This is not just an isolated example. Immigration restrictions reinforce global poverty. The economist Clemens (Reference Clemens2011, 84–89) estimates that open borders would increase the gross domestic product of the world by 20–60% and the citizens of developing countries would benefit disproportionately from liberalized immigration laws. Economists Richard and Page (Reference Adams and Page2005) find that a 10% increase in the share of international migrants in a country’s population causes 2.1% decline in the number of people living on less than $1 a day. Even when immigration restrictions don’t trap people in severe poverty or other harmful conditions, these restrictions constrain valuable freedoms. Immigration restrictions interfere with foreigners’ freedom of occupational choice and association (Carens Reference Carens2013, Ch. 11; Hidalgo Reference Hidalgo2014). States that restrict immigration prohibit foreigners from seeking employment abroad and associating with the citizens of other countries on voluntary terms.

States have moral reasons to avoid causing harm to foreigners and restricting their liberties. The burdens that immigration restrictions impose on foreigners are unintentional. That is, public officials don’t intend to harm foreigners when they decide to restrict immigration. But the harms of immigration restrictions are foreseeable. While it is perhaps morally worse for states to intentionally set back the interests of foreigners, states nonetheless have moral reasons to refrain from foreseeably harming foreigners and abridging their liberties. Consider an analogy with ‘collateral damage’ in war. Most people recognize that there are weighty moral reasons against foreseeably harming bystanders as a side effect of military action (see Rodin Reference Rodin2004). Similarly, states have strong moral reasons to refrain from foreseeably causing harm to foreigners by restricting immigration. These reasons may defeat countervailing considerations and explain why immigration restrictions are impermissible. In this respect, immigration restrictions are morally risky because there is some probability that they are unjustified.Footnote ² For example, there is some non-zero probability that the United States’ moral reasons to permit the immigration of Haitians are undefeated. The moral reasons that count against allowing Haitians to immigrate may simply be insufficiently strong to justify their exclusion. As a result, the United States might be unjustly condemning hundreds of thousands of Haitians to poverty and deprivation.

One might think that, to endorse the claim that there is some probability that immigration restrictions against Haitians are unjust, we need to reject the view that states have moral rights to exclude outsiders. But we can accept that states have rights to exclude and still conclude that there is a probability that actual immigration restrictions, such as the restrictions on the immigration of Haitians, are unjust. This is so because rights to control immigration are not absolute. Other moral considerations, such as the moral reasons to refrain from enabling harm to foreigners, can outweigh states’ rights to exclude.

Several political theorists contend that states have presumptive rights to exclude foreigners, although different authors describe the content and justification of these rights in different ways. Some authors, such as Wellman (Reference Walzer2011), argue that states have rights to freedom of association, which includes rights to refuse association with potential immigrants. Miller (Reference Miller2005) and Walzer (Reference Waters and Simes1983) argue that nations have rights to preserve their national cultures or, at least, to control how their national cultures evolve over time by enforcing immigration restrictions. Other authors, like Pevnick, contend that citizens have ownership rights over their political institutions and that citizens have rights to exclude outsiders from using their collective property (Reference Opeskin2011).

Yet, these theorists concede that other moral considerations can defeat states’ rights to exclude. Walzer (Reference Waters and Simes1983, 48–51) claims that states have obligations of mutual aid to admit refugees. Miller (Reference Miller2007, 207) and Pevnick (Reference Opeskin2011, 84) argue that states should admit immigrants who would otherwise lack adequate options to live decent lives in the states where they currently reside. Blake (Reference Blake2013, 125–26) concludes that rich states must accept foreigners who are fleeing oppression and that the restrictions that these states currently impose against the citizens of poor countries are unjust. Wellman concedes that states have powerful reasons to respect the freedom of foreigners and the citizens that want to associate with them, and that these reasons can outweigh states’ rights to self-determination (Reference Walzer2011, Ch. 4). The claim that other moral considerations can outweigh the moral reasons in favor of immigration restrictions is relatively uncontroversial.

So, most political theorists accept that moral reasons to admit immigrants can override the moral reasons in favor of exclusion. This is true regardless of whether states have presumptive moral rights to exclude potential immigrants or not. If states lack presumptive rights to exclude, then many actual immigration restrictions are unjust. But, even if states have presumptive rights to exclude, it does not follow that actual immigration restrictions are permissible insofar as the reasons to avoid enabling harm to foreigners and constraining their liberties can outweigh rights to exclude. To determine whether immigration restrictions are permissible, we must balance the moral reasons to permit immigration against the reasons to impose restrictions on immigration to arrive at an all-things-considered judgment about whether any given immigration restrictions are justified. Yet, there is a probability that states will get this balance wrong and impermissibly restrict foreigners’ freedom to immigrate.

Procedural obligations and biases against immigration

So, immigration restrictions are morally risky. What follows from this fact? If immigration restrictions are morally risky, then public officials and citizens incur obligations to take precautions to mitigate the risks that they will authorize unjust immigration restrictions. We generally have obligations to take precautions before acting in a morally risky manner. Rosen (Reference Rosen2004, 301) gives some examples to illustrate: ‘You are obliged to keep your eyes on the road while driving, to seek advice before launching a war and to think seriously about the advice you’re given; to see to it that dangerous substances are clearly labeled, and so on’. You should take precautions of this kind because you have obligations to avoid negligently causing or allowing harm.

The same point applies to public policy. Political decision-making is often morally risky. Consider Rosen’s example of the decision to go to war. Wars typically risk causing unjustified harm to innocent people. For this reason, most people think that it would be negligent if a political leader decides to go to war without taking adequate precautions to determine if this war is actually justified. Suppose that a political leader is deciding whether to authorize a military strike against a neighboring state. This leader neglects to think hard about whether this strike satisfies the principles of jus ad bellum or acquire the best available information about the likely consequences of a war with this state. Instead, this political leader adopts the following decision rule: if authorizing the strike boosts this leaders’ chances of winning the next election, then she will authorize it. Even if this procedure resulted in the substantively correct decision, this leader is culpable of gross negligence. As war is morally risky, this leader should have taken more rigorous precautions to ensure that she arrived at a morally justified decision.

Let us return to immigration policy. Immigration restrictions enable harm and coercively restrict the liberties of foreigners. Moreover, immigration restrictions may sometimes be impermissible. Thus, immigration restrictions risk subjecting foreigners to unjustified and harmful interference. Public officials and, to the extent that they influence political decision-making, citizens have obligations to take precautions to avoid impermissibly harming foreigners and curtailing their liberties. To do this, states must be able to reliably determine when it is morally permissible to restrict immigration or not. So, states should take steps to ensure that their decision-making about immigration is reliable, where a decision-making procedure is reliable if this procedure is more likely to result in morally justified decisions than alternative procedures. For ease of reference, I will refer to obligations to a make a decision in a reliable manner as ‘procedural obligations’. The people who exert influence over a state’s immigration policies, such public officials and voters, have procedural obligations to decide whether to restrict immigration in a reliable way in order to reduce the risk that they will unjustly restrict immigration.

How should public officials and citizens satisfy their procedural obligations with respect to immigration policy? Political leaders and citizens should acquire accurate beliefs about the likely effects of immigration. This is the case because the permissibility of immigration restrictions depends at least in part on the benefits and burdens of immigration. Suppose that states have moral rights to exclude foreigners. Nonetheless, most people accept that rights can be overridden if the consequences of doing so are sufficiently good. Even philosophers who defend the right to exclude concede that immigration restrictions are likely to be unjustified if immigration has large benefits for foreigners and few costs for citizens (see Wellman and Cole Reference Walzer2011, 84–91). If the permissibility of immigration restrictions depends partly on the effects of immigration, then public officials and voters are required to take steps to form accurate beliefs about these effects. Among other measures, political actors might consult the relevant social science on the consequences of immigration and adjust their beliefs about immigration in light of the available evidence.

Officials must do more than acquire justified beliefs about the effects of immigration. They must also evaluate these effects in the right way. In particular, officials should properly balance the interests of foreigners and citizens when deciding immigration policies. Imagine that public officials satisfy their procedural obligations to form justified beliefs about the effects of immigration. These officials examine the relevant evidence and come to the conclusion that immigration imposes costs on citizens. Assume that, while immigration benefits foreigners, immigration also causes wage losses for citizens, unemployment, overcrowding, and so on. If immigration sets back the interests of citizens, then public officials need to weigh the interests of foreigners against the interests of citizens in order to decide which policies to implement in response to these costs. But how should officials balance these interests in deciding whether to restrict immigration?

One possibility is that public officials should treat the interests of their citizens as decisive. People often assume in public discourse that their compatriots should have strict priority over the claims of foreigners. According to this view, citizens have special obligations to one another and these obligations permit citizens to give much greater weight to the interests of their compatriots than those of foreigners (see Macedo Reference Macedo2007). Adherents of this view would say that, if immigration imposes costs on citizens, then public officials should restrict immigration in order to protect citizens from these costs even if allowing immigration would substantially benefit foreigners.

However, we should reject the view that the interests of citizens generally trump the interests of potential immigrants. This is so because the moral reasons to refrain from coercing or harming foreigners often defeat the moral reasons to benefit our compatriots. To see why, consider an analogy with other special obligations. Most people think that we owe more to our friends and family members than we owe to strangers. Yet, it is normally impermissible to harm or coerce innocent strangers in order to benefit our friends and family members. It would be wrong for you to, say, mug a stranger and give this person’s money to your friends, or to coercively prevent strangers from competing with your family members for jobs.

The same point seems to extend to relationships between compatriots (Pogge Reference Pogge2006, 120–39; Huemer Reference Huemer2010, 438–47). Suppose that we have special obligations to promote the interests of our compatriots. It hardly follows that states can permissibly promote these interests in just any way. In fact, it can be wrong for a state to harm or coerce foreigners despite the fact that harming or coercing foreigners would prevent comparable harms to this state’s citizens. For example, while we might have special obligations to provide our compatriots with adequate healthcare, it would nonetheless be impermissible to kill foreigners, extract their organs, and distribute them to our compatriots who are dying of organ failure (Miller Reference Miller2007, 44). I have argued that immigration restrictions coerce and harm foreigners as well. If the moral reasons to refrain from harming or coercing foreigners can override the moral reasons to benefit one’s compatriots, then immigration restrictions may be unjustified even if these restrictions benefit a state’s citizens on net. So, it is false that the interests of compatriots should have strict priority over the interests of potential immigrants.

To more precisely specify how public officials should balance the interests of citizens and potential immigrants, I would need to supply a more-or-less complete account of justice in immigration, and I am unable to provide this account there. But I have argued elsewhere that it is objectionable for public officials to attach greater weight to the interests of their citizens in deciding immigration policies (Hidalgo Reference Hidalgo2013). Most people think that it is impermissible for public officials to use the coercive power of the state for the benefit of their friends and family over the interests of other citizens. I contend that it is wrong for officials to use coercion to privilege the interests of citizens over the interests of foreigners as well. If negative duties to refrain from coercing foreigners defeat special duties to compatriots, then public officials must be impartial with respect to the interests of foreigners and citizens. This is an admittedly revisionary view about the responsibilities of public officials. Even if this view turns out to be incorrect, it is clear that public officials are obligated to give the interests of foreigners non-trivial weight in their deliberations and to avoid treating the interests of their own citizens as decisive when the interests of foreigners and citizens conflict.

As a corollary to their procedural obligations, public officials and citizens should also insulate their decision-making from epistemic defects that damage the reliability of their decision-making. Suppose that the citizens and public officials of a state are disposed to form false beliefs about immigration. They think that immigration lowers wages, increases crime, and generates unemployment, whereas the evidence suggests that immigration does not have these effects. Or imagine that the citizens and public officials are inclined to disregard and ignore the interests of potential immigrants. These biases may cause this state to restrict immigration even when doing so is unjustified. Consequently, political leaders and citizens are obligated to take precautions to prevent these biases from influencing their decision-making about immigration. Political actors are violating their procedural obligations to the extent that they negligently allow biases and other epistemic defects to influence their decision-making about immigration policy.

To sum up my argument so far, public officials and citizens have procedural obligations to decide immigration policy in a reliable manner and, to satisfy these obligations, they must acquire accurate information about the effects of immigration, give appropriate weight to the interests of foreigners in their deliberations, and take precautions to insulate their decision-making from biases. I will now make the case that the public officials and citizens of actual democratic states are violating their procedural obligations. In particular, the citizens of affluent democratic states tend to overestimate the costs and underestimate the benefits of immigration. These biases prevent the citizens and officials of affluent states from satisfying their procedural obligations to decide immigration policy in a reliable way.

To explain why citizens and public officials often violate their procedural obligations, I want to first note that voters exert a large impact on immigration policy in democratic states. Legislatures are the primary actors who decide whether to restrict immigration or not and voters influence what legislatures decide to do. Other groups, particularly interest groups, also influence legislatures. Certain powerful interest groups, such as businesses, may favor more immigration than the general population and these groups might wield disproportionate influence over political institutions (Facchini, Mayda and Mishra Reference Facchini and Mayda2011). But the immigration policies of wealthy democratic states are broadly consistent with public opinion (Freeman, Hansen and Leal Reference Freeman, Hansen and Leal2013, 2–3). States generally select policies that are most preferred by the median voter, although states’ immigration policies tend to be somewhat less restrictive than the median voter would like (Facchini and Mayda Reference Facchini, Mayda and Mishra2008). Countries where the median voter is more opposed to immigration tend to implement more restrictive immigration laws.

However, citizens often hold false and biased beliefs about immigration. To support this claim, let us begin by examining popular beliefs about the economics of immigration. Many citizens oppose immigration on the grounds that immigration is harmful for the economy and that immigration increases unemployment among citizens. One cross-national survey of the public opinion of countries such as Britain, the United States, Italy, Spain, Germany, and France, finds that large pluralities or majorities disagree with the claim that immigration is good for their country’s economy and agree that immigration makes it more difficult for native citizens to secure employment (Ipsos 2011). But citizens’ beliefs about the negative effects of immigration are exaggerated. The dominant view among economists is that immigration has small or even negligible effects on employment and wages (Clemens Reference Clemens2011, 94–95; Peri Reference Peri and Sparber2014). Most recent studies find that immigration typically has ambiguous effects on wages and employment and, when immigration does have an impact, the effect is small and sometimes positive (Friedberg Reference Fitzgerald, Curtis and Corlis2001; Peri and Sparber Reference Pevnick2009; Fromentin Reference Friedberg2013).

Citizens also worry about the effect of immigration on public finances. They believe that immigration worsens public finances and that immigrants take more in welfare than they contribute in taxes. One report by the Organization for Economic Co-Operation and Development (2013, 126) finds that ‘there is clearly a link between the perception of the fiscal impact and public acceptance of additional immigration’. But most major studies of the fiscal effects of immigration find that immigration has few net effects on public finances. For instance, a majority of citizens in the United Kingdom say that immigrants take more out of the welfare system than they put it in, but it appears that immigrants are actually net contributors to public finances in the United Kingdom on average (Dustmann, Frattini and Halls Reference Dustmann, Frattini and Halls2010). A survey of the evidence concludes: ‘in general, there is no strong fiscal case for or against sustained large-scale immigration’ (Rowthorn 2008, 560).

One survey of randomly selected people in the United States asked respondents to say whether immigration is a ‘major reason’, ‘minor reason’, or ‘not a reason at all’ why the ‘economy is not doing better than it is’. About 47% of the public said that immigration is a major reason that the economy is not doing better than it is (Miller Reference Miller2009, 36). This survey also posed the same question to a randomly selected group of economists. Just 1% of the surveyed economists said that immigration is a major reason that the economy is not doing better. The overwhelming majority of economists could be wrong about the effects of immigration on the economy. Maybe economists are biased. But the disagreement between economists and the public persists even when social scientists control for many of the factors that could produce bias, such as income, job security, race, gender, age, ideology, and party identification (Caplan Reference Caplan2007, 59). This is prima facie evidence that many members of the public have false views about the economic effects of immigration. This helps explain why 65% of respondents in surveys believe the number of immigrants to the United States should be decreased, while only 16% of economists agree that ‘current U.S. immigration levels are too high’ (Miller Reference Miller2009, 36).

Most citizens also seem to have false beliefs about the relationship between immigration and crime. Majorities in Western Europe believe that immigration increases crime (Fitzgerald, Curtis and Corlis Reference Fromentin2011, 477–78). Concerns about crime are significant determinants of people’s attitudes toward immigration. In some countries, concerns about crime may be a more important predictor of attitudes toward immigration than concerns about the economic impact of immigration. Yet, the claim that immigration increases crime is generally unsupported. Three political scientists observe: ‘reports from single and multicountry studies suggest that immigration does not actually elevate crime rates. Recent U.S. research even finds that immigration is associated with lower levels of crime’ (Fitzgerald, Curtis and Corlis Reference Fromentin2011, 478). Sociologists Waters and Simes (Reference Wellman and Cole2013, 457) note that the popular belief that immigration causes crime ‘is remarkably resilient to the evidence that immigrants are no more likely than natives, and in most cases much less likely than natives, to commit crimes’.

Popular beliefs about immigration are not the result of random error. To see this, note that most citizens do not believe that immigration has greater positive effects than immigration actually has. They believe that immigration has larger negative effects than the evidence supports. This fact suggests that citizens are predisposed to form unfavorable beliefs about immigration in the first place. Biases distort people’s judgments about immigration in a negative direction. One relevant bias is ethnocentrism or in-group favoritism. Ethnocentrism involves the disposition to believe that members of in-groups are trustworthy, cooperative, friendly, and safe, and that the members of out-groups are untrustworthy, dangerous, and uncooperative. Some citizens have nationalist ethnocentric biases. These citizens tend to believe that foreigners have undesirable dispositions and characteristics in comparison with their compatriots.

To see the influence of nationalist ethnocentrism on public opinion about immigration, consider popular beliefs about the relationship between immigration and crime. As I noted above, most citizens think immigration causes more crime despite the fact that the available empirical evidence fails to support this belief. Why then do citizens think that immigration increases crime? Nationalist ethnocentrism is one plausible answer. If citizens believe that immigrants are untrustworthy, uncooperative, or dangerous, then it is only a short step to the conclusion that immigrants commit more crime than native citizens. There is systematic empirical support for the claim that nationalist ethnocentrism is a significant factor in explaining public opinion about immigration. According to one study, ethnocentrism is ‘the single most important determinant of American opposition to immigration—across time and setting and for various aspects of immigration policy’ (Kinder and Kam Reference Kinder and Kam2009, 139). Another study of attitudes toward immigration in Italy finds that:

Respondents blamed immigrants for contributing to a variety of social problems, such as unemployment and crime (Sniderman et al. Reference Sniderman, Peri, De Figueriredo and Piazza2002, 33–34).

Favoritism toward compatriots is not the only kind of in-group favoritism that influences popular attitudes toward immigration. Racial and ethnic in-group favoritism also affects attitudes about immigration policy. Research in political psychology in the United States indicates that people are more likely to feel threatened by non-white immigration (Hartman, Newman and Bell Reference Hartman, Newman and Bell2014). Popular opposition to immigration depends on the origin of this immigration. British citizens are more strongly opposed to immigration from the West Indies and Asia than they are opposed to immigration from Europeans and New Zealanders or Australians (Dustmann and Preston Reference Dustmann and Preston2007). Voters in Switzerland are more likely to reject observably similar applicants for naturalization if these applicants come from Yugoslavia or Turkey rather than Northern or Western European countries (Hainmueller and Hangartner Reference Hainmueller and Hangartner2013). The fact that opposition to immigration depends on the origin of this immigration suggests that racial or ethnic in-group favoritism influences attitudes about immigration.

So, it is plausible that citizens of some states have biases that lead them to form unfavorable beliefs about immigration. But we should distinguish between two kinds of ethnocentric biases. One kind of ethnocentric bias is empirical. People are disposed to form negative empirical beliefs about the members of out-groups. People might believe that the members of out-groups are dangerous, lazy, untrustworthy, and so on. These are, to some extent, empirical beliefs about the dispositions of immigrants. Another kind of ethnocentric bias is moral in nature. People may also ignore or radically discount the interests of out-groups. Citizens tend to discount or ignore the interests of foreigners, at least when the interests of foreigners and citizens conflict (Pratto and Glasford Reference Pratto and Glasford2008). This moral bias is reflected in immigration policies. Rodrik (Reference Rodrik2015) observes that we would need to value the welfare of foreigners dramatically less than the welfare of the citizens of affluent states in order to justify existent immigration restrictions. This is the case because allowing more immigration than the status quo would benefit foreigners a great deal and impose only small costs on citizens. Rodrik argues that, even if we attach relatively slight value to the welfare of foreigners, we should favor expanding global mobility. Yet, existent immigration restrictions are often popular. These facts suggest that citizens and public officials tend to unjustifiably ignore the interests of potential immigrants in crafting immigration policy.

In light of the evidence, it appears that many citizens in wealthy democratic states are biased against immigration. These biases influence what public officials do. Public officials pander to these biases in order to win elections. Some politicians also have the same biases and false beliefs about immigration that ordinary citizens have (Caplan Reference Caplan2007, 168–69). Recall that public officials in democratic states have procedural obligations to decide immigration policy in a reliable manner. Officials and citizens should insulate their decision-making about immigration from biases and false information. But citizens and officials have biases and epistemic defects that prevent them from deciding immigration policy in a reliable way. So, many citizens and public officials appear to be violating their procedural obligations.

International migration institutions

In this section, I will argue that states have strong moral reasons to transfer their decision-making authority over immigration to international institutions. My argument for this claim begins with the observation that, if an agent has biases that impair this agent’s capacity to make morally risky decisions in reliable ways, this agent has moral reasons to transfer decision-making authority to a more reliable party. To motivate this idea, consider the rationale for recusals. Public officials should recuse themselves when conflicts of interest impair their impartiality. If a public official has a personal or financial stake in a decision, then this official’s personal interests might bias her decision-making. In other words, conflicts of interests damage the ability of public officials to competently make morally risky decisions. To satisfy their procedural obligations, officials with conflicts of interest should delegate their decision-making authority to more impartial parties. These officials should allow less biased agents to make morally risky decisions instead.

The example of recusals suggests the following principle: if an agent A has biases that prevent A from reliably making a morally risky decision, then A has moral reasons to transfer decision-making authority to some more reliable agent B. These reasons might not be decisive. If an agent can eliminate her biases without transferring authority, then the reasons in favor of this delegation may be defeated. Nonetheless, biased agents who must make morally risky decisions have strong defeasible moral reasons to transfer decision-making authority to more impartial parties.

This rationale for delegation can extend to entire groups or institutions. Sometimes entire groups or institutions have biases that prevent them from making morally permissible decisions. If a group is confronting a morally risky decision and this group has biases that impair its capacity to make this decision in a reliable way, then the members of this group have strong moral reasons to delegate decision-making authority to more reliable institutions. Mayerfield (Reference Mayerfield2012, 288–95) develops an argument along these lines for international institutions. States are often biased in favor of their own interests and can be blinded by nationalist pride. Mayerfield observes: ‘If one group finds itself in conflict with another, members of the group form their views in consultation with fellow-members; they are little inclined to test those views against the objections from the other group. Under such circumstances, there is dangerously little check on the forces of bias and self-praise’ (Reference Mayerfield2012, 289). These biases can lead states to engage in violent disputes and treat outsiders unjustly. So, Mayerfield argues that states should delegate decision-making authority to international institutions that can impartially resolve disputes in order to prevent unjustified conflicts and wars (see also Cabrera 2009, Ch. 2).

The moral case for delegation to international institutions applies to immigration policy as well. As the decision to restrict immigration is morally risky, citizens and public officials have obligations to take precautions to avoid wrongdoing. In particular, they should take steps to insulate their decision-making from bias. But states are often biased against immigration and these biases prevent states from deciding immigration policy in a reliable way. If impartial international institutions constrained states’ decision-making about immigration, then this decision-making would be more reliable. That is, states would be more likely to implement morally permissible immigration policies if relatively impartial international institutions regulated and constrain their policies. Thus, public officials and citizens should allow international institutions to exercise authority over their immigration policies.

A more precise description of my argument goes like this:

1. 1. States’ decisions to restrict immigration are morally risky.

2. 2. If agent A must make morally risky decisions and A has biases or epistemic defects that prevent A from making these decisions in reliable ways, then A has strong moral reasons to transfer decision-making authority to a more reliable agent B.

3. 3. The citizens and public officials of some states have biases and epistemic defects that impair their ability to make reliable decisions about immigration policy.

4. 4. Certain international institutions that constrain state discretion over immigration policy would be more reliable at deciding immigration policy than states acting unilaterally.

5. 5. So, the citizens of some states have strong moral reasons to (at least partially) transfer their decision-making authority over immigration policy to these international institutions.

I will refer to this argument as the reliability argument for the international governance of immigration. I have already defended premises 1 and 3 of the reliability argument. I will focus on defending premise 4 in the remainder of this section.

I contend that international institutions that represent the interests of both the citizens of recipient states and the interests of foreigners would help citizens to satisfy their procedural obligations with respect to immigration policy. For the sake of brevity, I will refer to these kinds of institutions as inclusive migration institutions (IMIs). More specifically, the IMIs would have the following properties:

1. A. Authority. IMIs would have the power to regulate or exercise oversight over states’ immigration policies.

2. B. Feedback and accountability mechanisms. IMIs would have feedback mechanisms that provide these institutions with incentives to respond to the preferences and interests of both citizens of recipient states and potential immigrants.

3. C. Contestation. IMIs would have deliberative forums that allow both the citizens of recipient states and people who represent potential immigrants to contest or criticize states’ immigration policies.

4. D. Impartial adjudication. IMIs would allow for impartial adjudication through courts in cases where recipient states and potential immigrants disagree about which immigration policies to implement.

It is possible to imagine different kinds of IMIs that embody properties (A–D). We can imagine an international system of immigration courts that rule on the legality of states’ immigration restrictions or resolve disputes between states about their immigration laws. We can imagine a multilateral migration organization that is modeled along the lines of the WTO that encourages states to agree on common immigration laws and policies. I will describe examples of IMIs in more detail below.

Some institutions that seem desirable in theory might be bad ideas in practice. IMIs could have severe design flaws that make them less reliable than sovereign states. But I want to defend a probabilistic claim about IMIs. It is likely that reasonably well-designed IMIs with properties (A–D) would be more reliable than unilateral state decision-making about immigration. A well-designed IMI would suffer from fewer epistemic defects than states and IMIs would help counterbalance the biases that influence states’ immigration policies. Recall that the citizens of some states have ethnocentric biases that lead them to form unfavorable empirical beliefs about immigrants. IMIs would help counteract these biases. IMIs would include representatives from different nations and cultures that are less likely to suffer from these particular ethnocentric biases. If these representatives have power, then IMIs may help neutralize the biases that influence states’ immigration policies.

IMIs would also correct for biases against the interests of foreigners. Ethnocentric biases cause some citizens to ignore the interests of foreigners when citizens’ interests conflict with those of foreigners. Furthermore, democratic governments have strong incentives to implement policies that pander to these biases because citizens have political power. Potential immigrants lack the political influence to pressure other states for better treatment under the status quo. As a result, governments often have incentives to disregard the interests of foreigners. IMIs would encourage states to give greater weight to the interests of foreigners. These institutions would have feedback and accountability mechanisms that would allow foreigners to exercise political influence over the immigration policies of other states. Foreigners would have the power to demand fairer treatment of potential immigrants from other states and could use this political influence to counterbalance the impact of antiforeign biases on states’ immigration policies. For these reasons, states’ immigration policies are likely to be more responsive to the interests of foreigners if IMIs were in place.Footnote ³

Finally, IMIs would incorporate mechanisms for deliberation and contestation. These factors would likely improve the quality of states’ decisions about immigration. Foreigners could contest states’ justifications for excluding them in IMIs and force states to consider and respond to their objections. One standard argument for democratic government is that democracy promotes collective learning (Anderson Reference Anderson2006, 13–15). Democracy encourages people to learn from one another, deliberate together, and to hold each other accountable in public life. This continual process improves the epistemic quality of decisions. IMIs would supplement this process of collective learning. The members of IMI would bring the citizens of different countries together to contest each other’s policies and laws. Theorists of democracy have recently emphasized the epistemic value of diversity. Democratic institutions incorporate diverse perspectives and this epistemic diversity can help generate solutions to complex problems (Landemore Reference Landemore2012). Under the status quo, the citizens of most states debate immigration policy largely without considering the perspectives of potential immigrants. IMIs would incorporate the perspectives and interests of foreigners as well. If deliberation, contestation, and epistemic diversity improve the quality of decisions, then IMIs would likely improve decision-making about immigration policy.

For purposes of illustration, it may be helpful to consider an analogy with the WTO. To an imperfect degree, the WTO has properties that run parallel to (A–D). First, members of the WTO effectively lack the discretion to unilaterally restrict trade. If members unilaterally disobey WTO rules, then they may become liable to sanctions. In a sense, the WTO wields partial authority over the trade policies of some states. Second, the WTO formally and informally incorporates the perspectives and interests of a large number of different countries and stakeholders such as businesses and non-governmental organizations, despite the fact that some actors, such as rich countries, continue to have more influence than other stakeholders. Third, the WTO has deliberative forums where members can deliberate about and contest trade policies. The members of the WTO have rights to attend meetings, make proposals, suggest amendments, and oppose the consensus. Fourth, the WTO has mechanisms for impartial arbitration to resolve trade disputes. Countries can bring complaints about another state’s trade policies before a dispute settlement panel and appeal to the WTO’s Appellate Body to challenge rulings.

The WTO may improve the reliability of state decision-making about trade. The citizens of states confront moral risks in deciding trade policy. They risk wrongly impose trade restrictions on the citizens of other states. Like immigration restrictions, trade restrictions can enable harm to foreigners, especially the citizens of poor countries who would benefit from access to the markets of high-income countries. Furthermore, citizens tend to underestimate the benefits of international trade and nationalism generates strong opposition to free trade (Mayda and Rodrik Reference Mayda and Rodrik2005; Caplan Reference Caplan2007, 36–39). So, nationalist biases can influence state’s decision-making trade policy and these biases may prevent public officials from deciding trade policy in a reliable manner. The WTO helps counterbalance these biases and insulate states’ trade policies from biases and epistemic defects that shape public opinion. The WTO seems to make a difference for members’ trade policies (Goldstein, Rivers and Tomz Reference Goldstein, Rivers and Tomz2007). It appears that the WTO encourages states to implement less restrictive trade policies by limiting the influence of domestic interest groups and nationalist backlashes against trade (Goldstein Reference Goldstein2012). To be clear, my view is that the WTO is a flawed institution. The WTO should arguably be more accountable to the interests of poor countries (Cabrera Reference Cabrera2010, Ch. 8). Yet, there is evidence that the trade policies of rich states would be even more biased against poorer states in the absence of a multilateral trade organization that can adjudicate trade disputes (see Davis Reference Davis2012, Ch. 7).

Some economists propose that states should create a world migration organization that aims to establish a multilateral framework for negotiating migration flows between states (Bhagwati Reference Bhagwati2003). A multilateral immigration organization of this kind might have similar benefits as the WTO. Like the WTO, a world migration organization would constrain the kind of immigration laws that states could implement by establishing institutions that encourage more accountability to foreigners and impartial adjudication. If a world migration organization had a similar structure as the WTO, it could counterbalance the biases of certain states against immigration, allow for greater contestation and deliberation, make states’ immigration laws more responsive to the interests and rights of foreigners, and permit foreigners to appeal to impartial adjudication in disputes about immigration restrictions. A world migration organization may improve the quality of state decision-making about immigration by insulating this decision-making from biases against immigration.

Yet, there are differences between migration and trade that might make a global migration organization difficult to establish. The problem is that most of the gains from liberalizing immigration restrictions flow to poor countries instead of rich states (Hatton Reference Hatton2006). As a consequence, rich countries have weaker incentives to join a world migration organization because they have less to gain from more immigration. But states may have stronger incentives to join regional migration organizations. Hatton notes that regional associations ‘have the potential to work because they are between countries at similar income levels and hence there is the prospect of two-way traffic. In cases such as these, where development gaps between the countries are small by world standards, migration is driven more by comparative advantage, making two-way flows a more realistic prospect and offering some potential for building agreements based on reciprocity’ (Reference Hatton2006, 370). The gains from international immigration are more equally distributed between countries with similar income levels. If migration between countries is mutually beneficial, then states can negotiate their immigration restrictions on the basis of reciprocity. In addition, enforcement mechanisms, such as the threat of sanctions, are more likely to be effective in securing compliance when international immigration is mutually beneficial. So, regional IMIs between states with similar income levels might be a feasible first step toward the global governance of immigration.

Different kinds of international institutions besides a world migration organization can instantiate properties (A–D) as well. Here is another possibility: international immigration courts. To illustrate how international immigration courts might work, let us consider the example of the European Union (EU). The supranational courts of the EU constrain the immigration policies of European states. This system has two major components. First, the treatises of the EU give citizens of member states the legal rights to immigrate to other parts of the EU. Second, if states violate legal rights to free movement, then EU citizens can appeal these laws in the European Court of Justice (ECJ) and the ECJ has the power to invalidate states’ immigration laws. The ECJ has in fact played a key role in striking down the immigration restrictions of member states and expanding the scope of free movement within the EU (Carrera Reference Carrera2005, 710–15). The EU system has several features that likely improve decision-making about immigration. The ECJ has authority over the immigration policies of member states and gives EU citizens access to a forum where they can publicly debate and challenge states’ immigration policies. The ECJ also has accountability mechanisms that promote impartiality. For instance, many different European states oversee the Court and select officials to staff it. International courts like the ECJ may be relatively responsive to the interests of potential immigrants because these courts are accountable to international constituencies and not merely to the citizens of states that are deciding whether to restrict immigration.Footnote ⁴

It might be possible to extend elements of the EU model to other regions. But one major roadblock is international law, which gives states extensive discretion to unilaterally control immigration. To extend the EU model, states would need to give up some of their legal discretion over immigration. In particular, states would have to agree to give foreigners legal rights to immigrate. These rights could be qualified and defeasible. States could continue to retain some legal discretion to balance foreigners’ rights to immigrate against other considerations. States might have the legal discretion to restrict immigration if immigration threatens important public interests, such as this state’s interests in maintaining public order or managing rapid demographic change. But foreigners could appeal states’ immigration restrictions in international courts that would determine whether these restrictions are ultimately justified. International courts would aim to impartially judge whether a state’s interests in exclusion should trump foreigners’ interests in immigrating. International courts of this kind could have accountability mechanisms in place to help maintain their impartiality and ensure that they are responsive to both the interests of citizens of recipient states and foreigners who want to immigrate. An international body that includes representatives from different countries could oversee a global immigration court and select judges to serve on this court.

Global immigration courts are probably infeasible in the near term. States will likely refuse to cede legal control over immigration to global courts anytime soon. But the regional governance of immigration might again be a feasible first step. EU institutions are living proof of the possibility of regional courts that regulate immigration and other regions could conceivably create regional immigration courts in the near future. Consider the South American association Mercosur. The 2002 Mercosur Resident Agreement gave citizens of member states the right to work and reside in other states for a period of 2 years if they lack a criminal record and have appropriate identification. But, unlike the EU, Mercosur lacks supranational judicial bodies that exercise oversight over the immigration policies of member states. Mercosur instead relies on elite consensus and regional policy networks to secure compliance (Arcarazo and Geddes Reference Arcarazo and Geddes2014). Yet, it is hardly beyond the realm of possibility that the members of Mercosur will one day create international courts to monitor and enforce compliance with treatises that grant citizens of member states legal rights to immigrate. Other regional associations in Asia and Africa also regulate the immigration policies of their member states. Perhaps these regional associations will create international courts that would constrain the immigration policies of member states.

To be clear, I do not claim that IMIs should have exclusive control over immigration policy. States could continue to have some discretion to craft their own immigration laws. Consider an analogy with the ICC. The ICC can only exercise jurisdiction to prosecute people for crimes if national legal institutions are unable or unwilling to prosecute these people. So, the ICC has authority only if the domestic legal institutions of states fail to meet certain standards. This system may give states greater incentives to strengthen their legal institutions and adequately prosecute international crimes and crimes against humanity. IMIs could operate on a similar principle of complementarity. Suppose that states join an IMI that permits member states to control their own admission decisions if they already have sufficient legal protections for potential migrants in place. Imagine that these states grant foreigners qualified legal rights to immigrate and allow these migrants to appeal decisions to exclude them in their domestic courts. However, states would be obligated to transfer decision-making power to IMIs if they failed to implement these protections. This institutional arrangement might give states incentives to implement reliable procedures for deciding immigration policy while permitting them to exercise greater control over their own policies. Thus, states could potentially retain significant discretion over their policies even if the reliability argument is sound. But IMIs would constrain this discretion in order to make decision-making about immigration policy less biased against potential immigrants.

If international organizations regulated immigration and had properties (A–D), then these organizations would likely insulate state decision-making from biases against immigration to a greater extent than the status quo. IMIs would help political leaders and citizens to satisfy their procedural obligations to decide immigration policy in a reliable manner. As a consequence, membership in IMIs would mitigate the risk that states will implement morally impermissible immigration restrictions. Therefore, states have strong moral reasons to allow IMIs to regulate their immigration policies.Footnote ⁵

Objections

In this section, I will respond to objections to the reliability argument for the international governance of immigration.