Immigration Isn't "Foreign Policy"

I shouldn't have to point that out, but apparently I do, since a number of commentators have defended the "Muslim ban" executive order on the premise that the president has plenary power on foreign policy issues in areas not specifically reserved to Congress.

In his latest column, Andrew Napolitano makes that claim in the title ("Foreign Policy is Not For the Courts to Determine").

Immigration is not about relationships between the US government and other governments ("foreign policy"). It is about the relationship between the US government (or perhaps other governments, for example state governments) and individuals wishing to enter and/or reside in the United States. That's not "foreign policy," it's "domestic policy."

Napolitano uses the mis-classification of immigration as "foreign policy" to question the standing of state governments to sue over Trump's order. But they clearly have exactly such standing. To explain why, we have to examine Napolitano's other big constitutional error in the piece:

A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. Trump exercised that authority in accordance with the 1952 law when he signed his Jan. 27 order banning all immigration from the seven named countries.

What's wrong with that claim? Simple: The statute is unconstitutional on its face. Long-time readers of KN@PPSTER know the sections of the Constitution I'm about to cite ...

Article I, Section 9: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Article V: [N]o amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article ...

The Constitution did not include an enumerated federal power to regulate immigration. Therefore no such power exists (see Amendment 10).

Article I, Section 9 specifically reserved such a power to the states until 1808.

Article V forbade any amendment affecting that reservation prior to 1808 -- which, along with the lack of an enumerated federal power, makes it clear that an amendment would be required to remove that reservation of power from the states and/or transfer that power to the feds. And no such amendment has ever been proposed by 2/3 of both houses of Congress and ratified by 3/4 of the state legislatures.

This isn't just speculation. The matter was debated. Those provisions were put in the Constitution for a reason and that reason was simple: Without them it would never have been ratified. The slave states refused to ratify a Constitution that didn't protect the slave trade ("importation"). Pennsylvania refused to ratify a Constitution that didn't protect the availability of cheap non-slave labor for its growing manufacturing sector ("migration"). Both factions got what they wanted.

Congress abided by the Constitution's clear and unambiguous prohibition on regulating immigration until 1882 and even then hung the Anti-Chinese Exclusion Act on treaty provisions (co-equal with the Constitution) rather than on an activist Supreme Court's 1875 manufacture, out of thin air, of a federal immigration regulatory authority. And they were fairly cautious in expanding their unconstitutional portfolio for decades after that -- heck, you didn't even need a passport to enter or leave the US until after World War Two!

The statute that Napolitano refers to is clearly unconstitutional and therefore void and of no legal effect -- and the states which are suing against the order Trump tried to hang on that statute obviously have standing to sue against it as a violation of Article I, Section 9.

Note: As occasionally happens, I looked this over and decided the point was important enough to make in a Garrison Center column. So I did.  Some of you have indicated interest in my writing technique, so this is an opportunity to compare quick blogging to considered op-ed, write to rewrite. The KN@PPSTER version ran to about 650 words. I decided to bring the Garrison Center version in at 400 words. Enjoy, if that's your kind of thing. Opinions on whether I managed to condense the argument without hurting it welcome.

The Case for Rubio

Mickey Kaus makes it in spades:

Rubio's not going to drive Jeff Sessions from the capital. But you can count on the combination of President Rubio and Speaker Ryan to quickly pass an amnesty bill that (like the Gang of 8) contains only the most chimerical guarantees of new enforcement measures. You can also expect them to promote and defend trade, including "trade in services" that involves foreign workers performing those services on American soil."

Of course, Kaus considers that an attack on Rubio, not a plug for Rubio.

And of course I've never voted for a Republican for president, don't intend to ever vote for a Republican for president, and wouldn't rank Rubio very highly if I did consider voting for a Republican for president.

But damn, look at Kaus's argument: "This guy is the only even remotely likely nominee of either party who's in the same neighborhood as the ballpark of a sane, reasonable, pro-freedom border/immigration policy that's in any way even the tiniest bit consistent with American values. He must be stopped!"

Kind of sums up how FUBAR this whole election cycle is, doesn't it?

Why Gingrich's Immigration Statement was a Smart Move

Republican presidential candidate Newt Gingrich gestures while speaking at the First Coast Tea Party town hall meeting at Jacksonville Landing in Jacksonville, Florida November 17, 2011. REUTERS/Daron Dean (UNITED STATES - Tags: ELECTIONS POLITICS)

I don't agree with former US House Speaker Newt Gingrich on immigration -- hey, I'm an anarchist and he's still far too hung up on an issue that even the extremely statist US Constitution explicitly bars the federal government from any involvement in.

But: The polls say that majorities agree with him on, and sympathize with immigrants on, most of the positions he articulated in Tuesday's Republican presidential debate.

And the ones that don't have majority support at least have plurality support. Apply that to a multi-candidate race in which most of the candidates are going against those majorities and pluralities, and Gingrich is sitting pretty.

Republicans and Democrats alike have waited hand and foot on Know-Nothing voters for years now, giving them virtually everything they've demanded, from East German style border fences to attempted conscription of business owners as unpaid ICE agents ("E-Verify") to presidential sentence commutations for dirty cops who cover up attempted murder.

Hell, President Obama is on pace to deport more immigrants in his first term than George W. Bush did in his entire two-term administration.

The only two major-party presidential candidates who seem interested in the majorities and pluralities that favor moving away from totalitarianism and toward at least mild pro-freedom reform on the issue of immigration are Newt Gingrich and Texas governor Rick Perry, who has otherwise performed, to put it mildly, in a less than stellar manner.

Will the issue hurt or help Gingrich in the Iowa caucus? The conventional wisdom seems to be that it will hurt him. I suspect otherwise.

Iowa farmers and business owners are probably more likely than "man on the street" to actually show up on caucus day. They know that their enterprises' profitability depends to a non-trivial degree on the state's estimated 70,000 "illegal" immigrants. They've seen the devastating effects of Know-Nothingism on the economies of Arizona, Alabama and Georgia. And all things considered, they'd probably rather make money than lose money. Gingrich is probably picking up votes there.

Here's the debate segment:

Congress to Colbert: Come Up and See Us Some Time

So he did.

Judge: Miss West, are you trying to show contempt for this court?

Mae West: On the contrary, your Honor, I was doin' my best to conceal it.

We are all infinitely richer for Stephen Colbert's refusal to treat the US House of Representatives as gently.



Naturally, the usual suspects -- those bitter enemies of human freedom who want to abuse government policy to distort the labor market, conscript every last one of America's employers into service as unpaid ICE agents, and prattle on endlessly about laws that don't exist -- were outraged, in at least one case even in advance, over Colbert's appearance before the Subcommittee on Immigration, Citizenship and Border Security.

Haley Barbour, si se puede!

I've never rated Mississippi governor Haley Barbour's chances of garnering the Republican Party's 2012 presidential nomination very highly.

Apparently he doesn't think much of the odds either. That's the only explanation I can think of for him feeling free to talk sense (limited sense, but sense nonetheless) on immigration:



You can just hear his Super Tuesday primary numbers ticking down like the alarm in the hatch on Lost even as he speaks. The nod to Iowa, the mini-pander to the Know-Nothings on "securing the border" (hint: If the US ever manages that, it will be the first country in history to do so), even the "ground zero mosque" demagoguery aren't enough to cover up the "we need to quit being morons about immigration" (ahem) straight talk.

Good on him.

Hat tip -- Think Progress via memeorandum

Know-Nothing Labor Myths

Jacob Lyles at The Distributed Republic:

Open border libertarians like to pretend that the supply of immigrant laborers has no effect on the welfare of existing United States workers. But this is not the case.

Broadly speaking, the welfare of an average Joe who trades his labor for a living depends on two factors. The first is labor productivity which determines how much employers are willing to bid for workers. The second is the supply of labor of similar quality. Increasing the supply of labor with a particular skill set will bid down the wages of workers with substitutable skills. ...

There is no a priori reason to think that labor markets are immune to economic incentives.

I've never, ever, ever heard a libertarian claim that "the supply of immigrant laborers has no effect on the welfare of existing United States workers."

On the contrary, an unconstrained ability of workers to move back and forth across imaginary lines drawn on the ground by politicians ("borders") almost certainly has a great many effects -- some of them putatively negative (increased local labor supplies where labor is needed, driving down wages), some of them putatively positive (decreased labor costs driving down prices for everyone), many of them unnoticed, all of them certainly subject to what Mises referred to as the "calculation problem" when it comes to regulation.

The real question is not whether or not Worker A will have less leverage in seeking higher wages if Workers B and C are "allowed" to cross one of those imaginary lines.

The real question is whether or not the state has a legitimate power to distort the market for the alleged benefit of Worker A at the expense of Workers B and C who are forbidden to rent their labor, at the expense of the employer seeking to rent labor, at the expense of those called upon to involuntarily "undo" the distortions with still further distortions, and at the expense of the customer who has to pay more for the product or service because Worker A got the monopoly he wanted.

The libertarian answer to that question, in case you were wondering, is "no."

The Duh, Vin, See? Code

Rad Geek has already pretty much pwned Vin Suprynowicz's posterior (see comments), but really this situation (and not just with respect to Vin) is well past the "Requires An Intervention" stage. It's tough love time.

Yo, libertarians: Put down the Hoppe / Brimelow / Wooldridge crack pipe. Please. You're embarrassing yourselves, and frankly this business of having to constantly roll your semi-conscious carcasses out of your own ideological vomit is getting a little old.

For Vin's part, he now asserts that those who favor even a slight move toward the libertarian position on immigration are "speaking in code to disguise what they really mean."

Odd allegation, coming as it does from a guy who, to even facially substantiate it, has to preemptively impose a downright Byzantine code of his own on his readers: A code characterized by a state-as-deity re-definition of terms like "immigrant" and "trespassing," an assertion of "constitutional" powers found nowhere in the Constitution, and a bizarre moral comparison of the "crime" of working for a living without first bowing and scraping before some bureaucrat, begging the privilege of handing over baksheesh for "identity papers" to ... wait for it ... rape and armed robbery.

Fuck that noise, Vin. You know better than this. You are better than this. All you have to do to prove that to yourself is read your own column and count the number of irrational twists you had to put on the language and the number of willful denials of reality you had to weave into the narrative to get that column to "work."

The first step toward recovery is admitting discovering that you have a problem.

Against Stockholm libertarianism

We should repeal all of America's 20,000-odd "gun control" laws. But of course, we can't do that ... until we've eliminated homicide.

We should close down the war on drugs. But of course, we can't do that ... until we've scourged away every last vestige of the human desire for intoxication.

We should eliminate Social Security. But of course, we can't do that ... until all its current and future payees lie a-mouldering the grave, having never missed a monthly check.

If I put any of these propositions up for debate, my fellow libertarians would make short work of me. They'd have my head on a platter. It would be easy, because all three of the propositions are ridiculous on their faces.

Under the present welfare system, a vote for open borders is a vote for higher taxes for all. Someday, the Libertarian message of peace, liberty, and prosperity reach [sic] the entire world. All people will then enjoy the freedom and high standard of living we take for granted. In that day, immigration and open borders will be non-issues.

Sound familiar? That's George Phillies, candidate for the Libertarian Party's 2008 presidential nomination.

We must secure our borders before we can deal with the issue of how to deal with illegal immigrants already in our country.

Heard something like that somewhere before? That's Wayne Allyn Root, candidate for the Libertarian Party's 2008 presidential nomination.

Physically secure our borders and coastlines. We must do whatever it takes to control entry into our country before we undertake complicated immigration reform proposals. ... taxpayers should not pay for illegal immigrants who use hospitals, clinics, schools, roads, and social services.

Ring a bell? Hey, it's Ron Paul, Republican presidential nomination candidate. I'm including him because despite his recent born again hard claims to represent conservativism, most libertarians regard him as one of our own.

It's not just presidential candidates, of course.

The problem with so many libertarian formulations is that they do not respect reality. Rather, they hold up the libertarian ideal, lament its unattainablility, and refuse to debate the issue until the ideal is achieved. That's intellectually lazy. It's also an affront to reality, the rational man's anchor.

And the reality is that the American welfare state is accreting, not shrinking. The reality is that the more libertarians support the importation of impoverished minorities, with a tradition of aggressively manipulating the political apparatus to obtain property not theirs --the more intractable the welfare state will become.

-- Ilana Mercer, "The work open-border libertarians won't do," at Free Market News Network

This is what is evident in the current debate about illegal immigration: The welfare state is the underlying fundamental problem. Until that system is abolished, until a revolutionary change occurs and no Peter is looted for the sake of any Paul -- whether poor, rich, legal or illegal -- there will be no solution to the illegal immigration problem.

-- Tibor R. Machan, "Welfare state and illegal immigration," in the Orange County Register

In a world with radically different levels of economic freedom (and thus of economic prosperity), relatively free and prosperous nations cannot allow completely unrestricted immigration without risking serious socioeconomic disruption.

-- Brian Holtz, "Iraq Exit, Social Security, and Immigration," Knowing Humans

Ladies and gentlemen, what we have here is a hostage situation.

It's a neat scam, this holding of one positive reform hostage, while around the corner your political enemies hold its counterpart hostage as well. You won't let your hostage go until they let their hostage go. And they won't let their hostage go until you let yours go (and they'd really rather you didn't).

No muss, no fuss -- you've both successfully avoided responsibility. They've avoided doing something they don't want to do anyway, you've avoided doing something you claim you want to do but are looking for an excuse not to advocate. It's the pleading prayer of St. Augustine -- Da mihi castitatem et continentiam, sed noli modo! -- cleverly disguised as practical political necessity.

There are probably as many extant definitions of libertarianism as there are libertarians (even "Zero Aggression Principle" libertarians often disagree on what course that principle dictates in various circumstances). Among the strangest of those definitions is this "I stand for freedom -- just as soon as those other guys do, and not a moment before" nonsense.

As popular as Know-Nothing bullshit -- festooned with "I'd love to advocate immigration freedom, but first you have to convince that guy over there to give up his food stamps" hostage-taking camouflage -- seems to have become in what passes for a libertarian movement these days, I'm surprised we're not all running into each other at Stockholm Syndrome Survivor conventions. Fortunately, there's a cure.

Update: My friend Caryn Ann Harlos, who found this piece helpful and informative, tells me that I should replace that final link (which is to a defunct web site, Steve Kubby's 2008 presidential campaign site) with something more informative. She suggests this one. I'm both in agreement with her on that, and flattered by the suggestion.

Bet you didn't see this one coming ...

This Incredibly Stupid Statement of the Day gig bothers me a little. I'm not by nature a negative person, so when I put myself in the position of calling people stupid on literally a daily basis, I feel a bit of an obligation to highlight the non-stupid as well.

I just didn't expect to find it on Hugh Hewitt's site.

Patrick Ruffini makes a good case that "the fence" just isn't worth fighting over.

After all, if we open the front door to peaceful immigrants, the worst the fence could be said to represent is a few billion dollars wasted on chain link, barbed wire and "public works" graft -- a drop in the bucket, really. At best, it could even be considered a (minor, probably ineffectual, but real) national defense feature versus those terrorists and criminals who can't just walk in through the front door.

I expect to be thinking about this one quite a bit ... and considering the possibility that my opposition to "the fence" has been more a matter of esthetic revulsion than of "open borders" principle.