Is There a General Right to Immigrate to the U.S.?

By Philip Cafaro on June 7, 2010

Recently, Arizona's Gov. Jan Brewer signed State Senate Bill 1070 into law, the strongest effort yet, at the state level, to reduce illegal immigration. Clearly, with the highest numbers of illegal border crossings in the country and many hundreds of thousands of illegal immigrants in the state, Arizonans are fed up with the status quo. They want immigration laws enforced and they want them enforced now, not five or ten years down the line, maybe.

The Arizona law has proved highly popular with the general public. In recent weeks, despite much negative media coverage, national polls have consistently found 65 to 70 percent support for the new law across the country. With continued high unemployment and economic uncertainty, most Americans have little sympathy for law breakers who may be taking employment away from their fellow citizens.

As an advocate for immigration reduction, I support the Arizona law and other efforts to enforce our immigration laws. It seems to me that any talk of reducing immigration levels is just idle chatter without a commitment to enforcing whatever numbers we agree on. And pretty clearly, such a commitment has not been present in recent decades. That's why the United States has 12 million or more illegal immigrants today.


Predictably enough, Arizona’s new law has provoked protests. In a blog posted in the electronic version of the New York Times, Vivek Malhotra, advocacy and policy counsel for the American Civil Liberties Union, warns that the bill threatens to set up a "police state."

Malhotra claims that the bill is inherently discriminatory. "This law does nothing short of making all of its Latino residents, and other presumed immigrants, potential criminal suspects in the eyes of the law," he writes. "It authorizes police officers to stop and ask people for their immigration papers based only on some undefined 'reasonable suspicion' that they are in the country illegally . . . But how do you know people are unauthorized to be in the United States just by looking at them?"

Malhotra brings up some reasonable concerns. (His blog is one of five from various points of view, all under the title "Will Arizona's Immigration Law Survive?".) Even those of us who want to see our immigration laws enforced – a huge majority of Americans – don't want to set up an onerous system with government officials constantly badgering us for our papers. And any system we set up will have to avoid racial profiling and respect the civil rights of all concerned.

Still, it seems to me that we should be able to come up with an approach that enforces our immigration laws, in ways that are neither overly intrusive nor unjust. After all, we do this with laws against drunk driving, check fraud, and many other infractions, large and small. The law itself prohibits police from engaging in racial profiling, and Gov. Brewer has indicated that she will require special training for Arizona police in fairly implementing the law.

What is so special about immigration law-breaking, that some people think it is impossible to curtail?

One answer, I think, is that we have gotten out of the habit of actually enforcing our immigration laws. For many years now, federal immigration enforcement has been rare and spotty. Partly for this reason, many people don't see breaking immigration laws as important. In fact, some see immigration laws as themselves unjust, and go so far as to equate breaking those laws with civil rights and moral heroism.

In another blog posted along with Malhotra's in the Times, Tamar Jacoby, President of Immigration Works USA, a national federation of cheap-labor employers, says that Arizona may be "immigration's Birmingham." This is a reference to the harsh tactics of Birmingham, Ala., sheriff Bull Connor in 1963, which helped push forward civil rights legislation at the national level. The Rev. Al Sharpton has threatened to civil disobedience campaigns in Phoenix and Tucson in opposition to the law.

But are Rep. Raul Grijalva and Al Sharpton really this generation's answer to Martin Luther King, Jr., and Ralph Abernathy? Is preventing the arrest and deportation of illegal immigrants really the moral equivalent of ending segregation, or securing African-Americans the right to vote? Not a chance.

King, Abernathy, and company were fighting unjust laws and helping America reach its potential for a more perfect union. Grijalva, Sharpton, and their allies are fighting the reasonable implementation of just laws and helping to undermine democratic governance and the rule of law. As a student of American history, I find attempts to compare these two efforts more than inapt; I think they are obscene.


This leads to a second answer to our question: what makes immigration law-breaking special? It is special, because many immigrants' rights advocates don't think breaking immigration laws is wrong. In effect, they believe that immigrants have a right to settle in the United States regardless of our laws.

While this is not the explicit view of the American Civil Liberties Union, it seems implicit in their overall stance on immigration. In recent years, the ACLU has reflexively opposed any efforts to enforce U.S. immigration laws. They have opposed targeted workplace raids. They have opposed the use of the federal E-verify database. They have opposed random police checks for illegal residents. In fact, the ACLU has opposed every major initiative to enforce federal immigration laws over the past several decades. Now, apparently, they oppose asking people who have been picked up on other charges about their immigration status.

One is forced to ask: if all these laws, including the new Arizona law, are unfair and biased, what law – what law that actually worked – would the ACLU accept as fair and unbiased?

My sense is that the answer for the ACLU and many supporters of mass immigration is "none." No law that actually worked would be acceptable to the ACLU, for the simple reason that they don't think immigration laws should be enforced.

Of course, these folks say otherwise. Over and over, we are assured that the other side accepts the idea of enforcing immigration laws. But they never give an example of an enforcement mechanism that is both fair and workable. Instead, they demonize proposed solutions, such as Arizona's new law.


Now I don't want to demonize anyone myself. For all I know, ACLU lawyers genuinely believe that the Arizona law will lead to racial profiling. But if they were honest, they would admit that their main problem with the law is that it might lead to actual enforcement of federal immigration laws.

The problem, for the ACLU and other immigrants' rights advocates, isn't that that the law won't work without unintended consequences. The problem is that the law might actually work.

Here we come to a fundamental disagreement between the 70 percent of Arizona citizens who support the new law, and immigrants' rights advocates such as Vivek Malhotra. His essay and the ACLU's general stance on immigration matters seem to assume two things:

* First, that immigrating to the U.S. is a basic human right, held by all people.

* Second, that it is unjust to enforce U.S. immigration laws.

But the Malhotra and the ACLU are wrong; neither of these propositions is true.

In the first place, it is clear that no general right to immigrate into our country exists in American law. The Constitution names no right to immigrate, and the Supreme Court has consistently upheld the federal govern¬ment's right to regulate and limit immigration into the country.

Neither does such a right exist in international law. The UN Universal Declaration of Human Rights does not assert a general human right to immigrate into the country of one's choice. Nor do other major framework international rights treaties, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) or the International Covenant on Civil and Political Rights (1966).

Immigration proponents might want to argue that such a right should exist, whether or not it does currently. That is, they might assert a moral right to freely immigrate wherever one wants, and that national and international laws should be amended accordingly. However, I don't think they have a sound argument for this conclusion.

In fact, creating a general right to immigrate into the U.S. would be a disaster for our country, driving down wages, increasing income inequality, overrunning social services, leading to unsustainable population growth, and generally undermining the common good. It would also undermine U.S. citizens' right to self-government, since – and this can't be repeated often enough – a large majority of Americans want less immigration into the U.S., not more.

Finally, asserting a general right to immigrate into the United States obscures the responsibilities that citizens of other countries have to stay in their countries of origin and work to create better societies for their descendants. It may be true that individuals can pursue better opportunities in the U.S. than in Mexico, Guatemala, or the Philippines. But how will those countries ever become good places for average people to live if their most enterprising citizens keep leaving, and if the political elites who hoard wealth and opportunities can keep "exporting" potential trouble-makers?


For all these reasons, there is not and never will be a general right to immigrate into the United States. But if that's true, it necessary follows that enforcing U.S. immigration laws is not inherently unjust. Our immigration laws are there for a reason. They should be respected by all concerned; followed by citizens and non-citizens; and enforced by the police and other law enforcement officials.

It seems particularly misguided to play racial politics with immigration law: a recipe for social polarization and growing lawlessness. If the vast majority of illegal immigrants in Arizona are Hispanic, that cannot justify allowing illegal immigration to go unchallenged. Arguments that efforts to enforce the law are racist, because doing so would catch mostly one racial or ethnic group, are obviously specious. Should the FBI have avoided efforts to break up organized crime in New York City after World War II, because the "Five Families" all had Italian names?

The citizens of Arizona are fully entitled to pass a law demanding that immigration laws be enforced in their state. That's what the majority of citizens from across the country will no doubt demand, if and when Congress takes up national immigration legislation.