Coyote Blog

As most libertarians feared, all those Republican concerns about Executive power under President Obama seem to have magically disappeared now that the President has an "R" after his name.  President Trump is set to put on his magic Thanos glove and snap his fingers and impose 5% Tariffs on Mexico.  The ostensible reason is to force Mexico to reduce immigration to the US, though I think it is becomming pretty clear that Trump actually thinks tariffs benefit Americans and he wants any excuse to impose them on our major trading partners (how about a 5% tariff on Canada if the Raptors win the NBA Finals?).  And all those Republicans in Congress who just 2 years ago nominally 1) were pro free trade; 2) were against raising taxes on Americans; and 3) were against expansions of executive power -- they are just going along meekly.

Scott R. Anderson and Kathleen Claussen attempt to explain what possible legal authority he might have to do so, and it turns out the decision rests on Trump's earlier declaration of a national emergency at the border.

By the way, I know a lot of readers really piled on me every time I tried to compare the border wall to the Berlin Wall.  Didn't I understand that it is totally different to keep people out than to keep them in.  I never thought that made much sense -- the wall blocks free movement of people and I am not sure its morality turns 100% on which side of the border built it.  Perhaps my point is now clearer.  What if Trump convinces Mexico to build the border wall, or at least use more aggresive policing to keep people in Mexico.  Isn't THAT now just the same as the Berlin Wall?

Kevin Drum has a good roundup of immigration statistics that really help to demonstrate that there is no new crisis at the border, and in fact with the exception in a rise of asylum requests, the border has been getting quieter for 10 years.

I think there are clearly elements of immigration that are broken.  I will highlight three that will likely alienate both sides of the political aisle. By the way, none of the three has to do with a wall.

1. I don't think we let in nearly enough legal immigrants each year -- all the Conservative talk that they just want people to follow the legal immigration process is all so much BS.  The legal immigration numbers are such that it is simply impossible for many to qualify.  But all this is unnecessary for many as they are not actually after permanent residence or a life of leisure on welfare.  A lot of the people who cross the border illegally just want to work temporarily and go back home.  We need a far larger guest worker program where workers can go back and forth as much as they like.  Ironically, a lot of permanent settlement here by illegal immigrants is due to tougher border controls, not lax ones.  They would rather go back and forth and just come over to work, but given the risks in crossing the border they have incentives to stay on this side.
2. A lot of the bad things Trump is trying to do at the border can trace back to the sanctuary city movement.  I initially was sympathetic to the sanctuary movement, as I support more immigration and know illegal immigrants who are good people just trying to make a life for their family.  I have turned against it as I have seen the reaction it has created.  I think a lot of the impetus behind the stupid wall proposals is that Republicans feel like the traditional immigration defense-in-depth enforcement approaches have all been undermined fatally by the sanctuary movement and that the only way to stop illegal immigration is right at the border.  The detainment and family separation issues last year seemed to be directly tied to the sanctuary movement, as Republicans most feared (probably rightly in many cases) that any border-crossers released waiting hearings would just run for a sanctuary city and be impossible to process at that point.
3. For years I believe we had a national consensus that admitting refugees is a good thing, and that consensus seems to be broken.  Stories from Europe of violence and other issues stemming from the wave of mostly Muslim immigrants the last few years (the media is so polarized on this I still cannot figure out if these issues are real or imagined) have turned Conservatives against admitting refugees.  I will say the Left has not helped at all by expanding the definition of what constitutes a refugee and by weaponizing Central American refugees in their resistance to Trump.  We waste all kinds of money on foreign aid and other programs that, at best, don't work.  But we have an incredible power to help the world.  First and foremost by trade and dropping our trade barriers.  But second by admitting a good number of the world's stomped-upon and destitute to this country.  Our historic numbers of such folks admitted I would argue have always been miserly, but as a minimum we need to at least stick to those levels.

As with many of my posts, I am still thinking through this.  I grew up an immigration restrictionist but today simply cannot think of a reason why (welfare state and public services aside) we have a right to restrict people's movement across borders.  I don't have a problem limiting public services for some time period and voting rights, but if someone from Mexico and I contract to rent a room in my house or work for my company, I don't think the government can restrict that.  I understand that there are perhaps limits to how many immigrants can be accomodated in a year for a variety of practical reasons, but we are way below those limits (as proven by our experience in the 19th century).

Disclosure: Like pretty much 100% of the Americans reading this, I am from a family of immigrants.  And like pretty much every other immigrant group, at one time or another my group has had the exact same language used against it that Conservatives use against Hispanic immigrants today.  My family happens to be German, and escaped the Kaiser in the late 19th century.  We have had it pretty good as far as immigrant groups go, but we had our time in the barrell in WWI.  I was at a party a while back and a woman who was a 2nd generation immigrant was railing at Mexicans for not being like other hard working immigrants who integrated into America.  I asked her where her family was from, and she said Hungaria.  I told her that early in the 20th Century Eastern Europeans like her family were treated to EXACTLY the same critiques and the strong immigration restrictions early in the century were mainly to stop eastern and southern (read: Italian) Europeans who were considered "bad" immigrants.  Replacing the Chinese who were the previous "bad" immigrants.  Replacing the Irish who were the "bad" immigrants before them.

Postscript:  I did not mention it above because I was talking more about the Mexican border and I don't think there are a lot of PHD's swimming the Rio Grande, but we for sure should be raising or perhaps waiving entirely any restrictions on talented, highly educated people from coming to this country.

Postscript #2:  I know folks have criticized me for my calling it a Berlin Wall on our border.   Sorry, but I have seen the Berlin wall from both sides and the wall prototypes look like the Berlin Wall to me.   I honestly am not sure why a border wall is immoral when set up by one side but moral when set up by the other.  Its the same wall restricting the same movement.  People respond that "its OK to wall people out of your house but not to be walled in."  But the house analogy for immigration is totally flawed and drives me crazy.  The country is not one property unless you have a Marxist definition of property.  If you want a better analogy, the county is not a house but is an apartment building with 100 million apartments.   I want to welcome people from outside up to my apartment to visit me or maybe live with me or work with me. You want to change the door code and keep my visitors out.

Trump vs. Hawaii More Interesting Than I Thought

The Conservative and Progressive responses to the Supreme Court's Trump vs. Hawaii decision that upheld v3.0 of the travel ban are pretty predictable -- Progressive writers have argued that of course it violated the first amendment because Trump made clear any number of times that he was animated by distrust of Muslims, while Conservatives said it was clearly not just aimed at Muslims (he included Chad!) but anyway it was a bad precedent to infer intent from campaign speeches even before he was President.

What I didn't know until I read Eugene Volokh was that there are some really interesting precedents that make immigration law one of the few areas effectively outside the Bill of Rights.  I don't really like what I see in this, but it is an issue I never understood before.  You really need to read the whole thing to get the gist, but here is his summary:

The U.S. has nearly unlimited power to decide when foreigners are admitted to the country, even based on factors (such as ideology, religion, and likely race and sex) that would be unconstitutional as to people already in the country.

Janus v. AFSCME Council 31 In An Alternate Universe

In this case, a state worker was suing to prevent a public employee union from deducting an "agency fee" from his paycheck despite the fact that he did not want to join the union.  The union argued that the employee benefited from their collective bargaining and should have to pay something for it.  Apparently the case turned on First Amendment issues -- while technically the union could not spend these agency fees on political speech, the reality is that money is fungible and at some level almost everything a public union does is political.

As a quick background, I totally support private union bargaining as a fundamental right under the First Amendment, though we could argue whether current law overly tips the power balance toward or away from unions vs. a free market.  On the other hand, I have deep, deep doubts about public sector unions, largely because there is no real bargaining going on.  In most cases, the public sector unions and the officials they are nominally bargaining with are on the same side and opposed to taxpayer interests.

So I am not unhappy to see public unions take a hit here, but addressing my concerns should be a legislative issue (as exemplified by a number of "right to work" states that have banned this practice).  But this is a judicial case and should not be dealing with legislative issues but issues of the law, and the case confuses me because I could easily see the Right and the Left arguing opposite sides on legal issues of this case given a slightly different world.  After all, requiring employees to pay these fees is a condition of employment -- wouldn't we expect Conservatives to support the right of employers to freely set the conditions of employment?  If these are too onerous, Conservatives would argue people would just not work there.  In this world, wouldn't we expect, then, Progressives to argue against such open-ended freedom for employers to set work conditions on the argument that there is a power imbalance between employer and worker -- exacerbated because the employer is the state in this case -- and they can't easily fight these onerous conditions?  Huge swaths of employment law, written mainly from the Left, are dedicated to circumscribing allowed employment conditions.

Those who have read this blog for a while know that I have an up and down history with Twitter.  I think it is a perfectly valid platform for sharing breaking news, following celebrities, posting cute animal pictures, and notifying folks that blog posts or longer articles are available.  I have always used Twitter for the latter function, and for those who follow me there, I will still use it to automatically publicize my blog posts.

From time to time, though, I have dived deeper into Twitter and tried to use it to actually have conversations and discussions about certain topics.  The first time I tried this I had to get off after a month.  I reported here that Twitter was making me both unhappy and a worse person, the latter because I fell quickly into the Twitter trap of going for zingers and gotchas rather than treating people's arguments civilly and with nuance.  A few days ago I gave it one more try, perhaps unfortunately the day after Trump's state of the union.  In the process I came to a final conclusion that Twitter is an impossible platform for political discourse, at least for me.  I am open to considering that the failure is in part my own, that I am simply incapable of making the kind of arguments I want to make within the Twitter character limit.   Never-the-less, I have deleted my twitter app from my phone so I will not be tempted to dive back in when I am stuck in the doctor's waiting room.  I will still scan it to see what is going on, but if I want to respond to something, I will do it here.

Just for fun, I thought I would dig through the detritus of my last 48 hours on Twitter and see if I could pull up a few examples of just what drove me crazy.  I want to make it clear that I am not leaving because people *gasp* disagreed with me, but because that disagreement was embodied in really poor discourse, the poverty of which I think is necesarily related to the nature of the platform.  After considering several, here is a good example of why I left.

It started with my seeing this post in my feed from a guy named Nick Searcy.  I don't really know who that is, but he is not just some rando with 8 followers, he has almost two orders of magnitude more followers than I.  He wrote:

Democrats want an Open Border policy.

Why don't they want an Open House policy?

Why should you be able to lock your doors at night? That is so discriminatory! What if someone needs something?

— Nick Searcy, Stable Genius (@yesnicksearcy) January 31, 2018

While there are some solid arguments for why truly open borders might not work in today's USA, I have always considered this analogy of a country's borders to private property boundaries to be a really weak argument.  Not only weak, but one that dangerously undermines the meaning of private property and makes it harder to defend the property rights that Conservatives say they support.   I actually wrote hundreds of words on this argument here, so you can probably guess I struggled to respond to this in one tweet.  I tweeted:

Because only in a socialist does one entity own the entire country like it is their property. If I want to hire someone from Mexico in my business, and I want to rent that person a place to live on my property, why do you get to lock the door barring that person from my property?

— Coyoteblog (@Coyoteblog) January 31, 2018

(lol, the unmentioned problem I also have with Twitter is the inability to edit after the fact.  In a socialist ... what?  Dammit Coyote, learn to self-edit)

So I will confess the property rights argument is a subtle one for most people, and a difficult one to make in part because even strong defenders of property rights often don't have a very clear understanding of them.  The picture I think many property rights defenders have in their head is the old coot sitting on his front porch with a shotgun across his lap yelling "get off my land."  But for property rights to be meaningful, one needs to not only be able to protect the borders of that property but also hire whom they like to work on their property, sell to whom they like, rent to whom they like, entertain whom they like, etc.  Its not just about one's ability to exclude people, but also one's ability to associate with people of one's choice.

Now, I can imagine a number of reasonable rebuttals.  Someone might argue that this is all fine and good when 100 people want to come and seek a job from folks like me, but what if the number is a billion?   Anyway, we could have an interesting discussion along those lines.  But instead I got this:

Because of these little things called “laws.” Laws are important when you are trying to keep a country safe. Read them. @Coyoteblog

— Nick Searcy, Stable Genius (@yesnicksearcy) January 31, 2018

Uh, what?  This makes about zero sense in context.  He was criticizing a open border policy, which would represent a change in current law.  I offered a partial defense of open borders and why I thought his property rights analogy for border restrictions was a bad analogy.  And so he answers "because laws".  Honestly, this may be my failing, but I really did not understand how laws were the reason we could not change immigration laws (he may have an implicit assumption that immigrants are dangerous and laws are thus necessary to protect us from them, but if this is his core assumption driving this comment it goes entirely unstated).   So I assumed I had not explained myself well, and made the mistake of trying to clarify my point (instead of just walking away as I should have).  I will confess that the 40+ likes he got for a tweet which was true on its face but made zero sense in context influenced my decisions to try again.  Perhaps if I clarified, so would he, so I tweeted:

You made an analogy between border restrictions and locking your house. I was explaining why that is a bad analogy. When you advocate for immigration restrictions you are limiting my property and association rights, not protecting them

— Coyoteblog (@Coyoteblog) February 1, 2018

And here you go, the payoff for reading so far into this post, the true WTF moment of the thread

Your property rights don’t allow you to harbor criminals, dolt. Read a law book someday. @Coyoteblog

— Nick Searcy, Stable Genius (@yesnicksearcy) February 1, 2018

and here, because repetition using slightly different insults just reinforces the point

And it’s a ridiculous argument because your property rights do not allow you to harbor criminals who break the law.Sorry, loser @Coyoteblog

— Nick Searcy, Stable Genius (@yesnicksearcy) February 1, 2018

I am not even sure how to parse this.  More than even the statement itself, the 60 likes and 4 retweets just sort of floored me.  "Yeah, Nick, you showed that guy!"  Anyway, I assume what is going on here is that rather than understand my actual argument, he assigned to me the same package of both real and straw man arguments Conservatives assign to all immigration supporters and then started arguing some of those, rather than the actual issue we were arguing.   Anyway, just to make sure I had the full Twitter experience in this thread we had an appearance by the super Internet sleuth who has figured it all out:

Coyote = someone who helps people enter the country illegally...interesting

— Humanitarian (@BagofParts) February 1, 2018

lol, nice job.  The few folks who were reading my blog at the beginning -- which had its first post in 2004 a full 18 months before the first tweet on Twitter -- will know the blog is named after the Warner Brothers animation character, who in my mind should be one of the patron saints of small business owners -- he works his *ss off to achieve a goal and something unexpected screws his quest up every time.

Anyway, I guess I should make clear that my position on Twitter is roughly the same as it is on incentives.  In the case of incentives, bad organizations don't have bad people, they have ordinary average people with bad incentives.   As far as Twitter goes, I am more than willing to believe that, despite what he thinks of me, that Nick Searcy is not a dolt or a loser.  He is likely a reasonably smart guy on a platform that turns everyone on it into morons and *ssholes.

So I will use twitter to publish so people can find my articles in their feed there, and I will look at it from time to time if I need a blogging topic, but otherwise I am going to limit my discourse to places I can write in long form.

Postscript: OK, I figured out who this guy is.  I have not seen him in a lot of things but he played Deke Slayton in the HBO mini-series From the Earth to the Moon and that entire series, including his contribution, was excellent.  I give him kudos as an (apparently) vocal Conservative in the entertainment world, as I think the constant drumbeat of unthinking Leftism in that industry tends to cause most of the Conservatives to just go into turtle mode to protect their careers and sanity.   Still don't agree with him on immigration.

Against my recent personal resolutions, I spent the last 24 hours active on Twitter.  My memory of the platform turned out to be largely correct -- it took only a little while on Twitter before I became a worse person, abandoning rational argumentation in favor of clever "gotcha" zings at people whose minds aren't going to be changed anyway. So I am going to respond to some of the things I saw here on the blog, rather than on Twitter.

Much of the traffic in my feed, the day after the President's State of the Union speech, centered around immigration.  As many of you know, I grew up an immigration restrictionist, but morphed over time into a largely open immigration supporter because I simply cannot come up with a moral justification for a free society restricting anyone's freedom of movement and association.  I became convinced (more on this in a second) that not only did immigration restrictions limit the rights of those trying to immigrate, but despite being native born, they limited my property and association rights.

Yes I have concerns and I think there are some valid arguments out there.  It is, for example, really hard to square open immigration with our current definitions of citizenship and various government benefit programs.  In addition, I am frequently concerned that we libertarians are being suckers on immigration, justifying immigration on the grounds of individual liberty and then having waves of immigrants who vote for things that limit personal liberty.  I see that already with "immigrants" moving from California to Arizona, who leave California because of the effects of the crazy regulation regime there and then come to Arizona and vote for all the same crazy stuff that ruined California.

But I actually saw neither of these arguments made all day.  Instead, I saw one form or another of these four arguments:

1.  There are individual examples of immigrants who did bad things. Trump's invocation of the MS-13 gang certainly set the tone for this, but I saw it all day.   This is a classic Conservative civilization-barbarism argument and tends to have immense appeal in that community.  But here is what is funny to me.  Conservatives (rightly in my opinion) oppose using tail-of-the-distribution individual weather events to "prove" climate change.  But those same Conservatives sure like to use rare individual acts of criminal behavior to "prove" immigration is dangerous.  Tied in with this is an observer bias -- the media only presents us with the extreme examples.  When the media only puts the weather on the news when it is extreme, it leads to a false impression that the weather is becoming more extreme.  When Fox News fills the news with crimes committed by immigrants, rather than say crimes committed by natives or acts of kindness committed by immigrants, it leads to a false impression that immigrants are all criminal barbarians making us less safe.  Which leads to #2:

2.  Immigrant crime is 100% preventable because we could just have kept them out.  This is a variation of the Skittles immigration meme that went around before the election, asking if one would voluntarily eat from a bowl of 1000 Skittles if one knew 2 or 3 were poisonous.  An example I saw of this yesterday was this:

Murder by illegal aliens is 100% preventable. Rape by illegal aliens is 100% preventable. Gangs comprised of illegal aliens are 100% preventable. Theft by illegal aliens is 100% preventable. Drunk driving deaths by illegal aliens is 100% preventable. Domestic abuse by illegal.... https://t.co/xWnF7mVUN5

— James Woods (@RealJamesWoods) January 30, 2018

I suppose this is correct on its face.  Because in any group of 10,000 randomly-selected human beings some will be criminals, such that banning any group from the country would also ban some criminals.  But the problem is that you could make this argument for any group.  Heck, you could use this equally well as an advertisement for abortion, because every 10,000 births you prevent will likely eliminate some criminals.  Because this argument is equally valid for any group one might ban from the country, it is not a valid argument against immigration.  You still have to say why you want to pick on immigrants vs. some other group.  The first thing Conservatives would say is, "Because they are illegal!" and I will deal with the rule of law argument below in #4.  But the other thing they might say is that immigrants commit crimes at a higher rate than natives, an impression formed by wall-to-wall Fox News coverage over every alleged immigrant crime (see #1 above).  But this impression is simply not the case.  Study after study shows that immigrants commit crimes at a lower rate than native born Americans.  If you really care about crime, immigrants are the last group you want to send away.  Here is one such study from Cato, but there are many.

3.  You lock the front door of your house, don't you?  An example of this argument is here:

Democrats want an Open Border policy.

Why don't they want an Open House policy?

Why should you be able to lock your doors at night? That is so discriminatory! What if someone needs something?

— Nick Searcy, Stable Genius (@yesnicksearcy) January 31, 2018

The first problem with this argument is that it is fundamentally socialist.  Only in a socialist country is the entire country one entire single block of property.

I really hate the house analogy but if you simply have to use it, then don't think of the country as a house, think of it as a giant apartment building with 100 million apartments.   Each apartment has its own door and then there is a door into the building itself.  When people talk about immigration restrictions, they are talking about limiting who I can and cannot buzz into the front door to come up and visit me.

Bad analogy?  Well, I wasn't the one who started the whole stupid building analogy. Anyway, the correct way to put it is that if I want to hire someone from Mexico in my business, and I want to rent that person a place to live on my property, why do you get to lock the door barring that person from doing these things with me?  That is why I said above that immigration restrictions don't just limit the rights of immigrants, they limit my association and property rights as a native-born American.  I can't hire anyone I want.  I can't have anyone I want come visit me.  I can't rent my property to anyone I like.  I can only do all those things with a person who has been licensed by the Federal government to be able to interact with me in this country.  And those licenses are very scarce and hard to get.

4.  They're illegal!

Because of these little things called “laws.” Laws are important when you are trying to keep a country safe. Read them. @Coyoteblog

— Nick Searcy, Stable Genius (@yesnicksearcy) January 31, 2018

I will admit the rule of law argument is seductive, but I have a couple of thoughts on it.

First, do you file and pay state use tax whenever you buy things over the Internet that have not had sales tax applied?  Do you pay all the proper employment taxes for your household help, or if they are contractors, file 1090's for what you paid them each year?  Do you always stay under the speed limit and come to a full and complete stop at every red light and stop sign?  Do you always have your dog on a leash in public areas that require it?  If the answer is "no", then stop lecturing me on the rule of law.

I know that the answer to the queries above is typically that those things are all trivial sh*t compared to breaking immigration laws.  Hmm, maybe or maybe not -- they are all basically victim-less, often paperwork crimes.  But here is another way to think of it.  You are breaking the law for some trivial reason, because you want to get to work 30 seconds faster or can't be bothered with an hour of paperwork.  Illegal immigrants are often breaking the law for life and death reasons.  Which of you is more admirable?  More than anything else about the immigration system, I hate that it takes people with qualities we generally admire -- they are trying to improve themselves, trying to make a better life for their kids, trying to find better jobs and schools -- and we turn them into criminals.  Trump is right about one thing -- many of these countries have been turned into sh*tholes by their governments.  I would like to think that if I were born in one, I would be doing everything I could to get out, laws or no laws.

Finally, I would observe that the statement "I am not against immigration, just illegal immigration" is just a cover for most people who say it.  If that were really true, we could fix it in a second -- just make it legal.  But few on the Conservative side are suggesting any such thing.

I know that many of my readers have more skepticism than I about open immigration.  We will leave that for another day.  But I am not sure how any American who prides themselves on American exceptionalism and our leading role in the world promoting freedom wouldn't cringe at seeing these pictures.  What a terrible image they will make running for thousands of unbroken miles.

I am not sure why we are going through all this engineering effort when we could just be borrowing from the experts:

Postscript:  Congrats to our local entrants from the Phoenix area firm that submitted by far t

he ugliest design.

Update:  Just to confirm, based on the comments:  Yes, I do not see an ethical difference between stopping people from coming in and stopping them from going out.    Others of you do see a difference, and we will have to disagree.  I don't think the Berlin Wall would have shifted from evil to OK had it been built by the West Germans instead to keep communists bottled up on their side.  I know folks love to use the home analogy, that it is OK to fence folks out of your home but a federal crime to fence them in.  But I have always thought equating a whole country to private property is a bad analogy.  Basically, such an assumption rests on socialist community property ownership assumptions.   A Mexican man wants to drive a car he owns, using gas he buys along the highway, along a road paid for with the gas taxes he just paid, to take a job at my company I freely offer him and rent an apartment I freely lease to him.  Voting, government benefits, holding office -- we don't necessarily have an obligation to offer any of those things, at least initially.  But I don't think it is ethical to erect this wall in his path to exercising free exchange.

Frequent readers know that I am a strong supporter of immigration**.  Unfortunately our two major political parties have more mixed feelings, at best, about immigration.   Here is your one-sentence guide to the two parties' positions on immigration:

Republicans want immigrants to work but not vote, while Democrats want them to vote but not work.  Latest proof here.

I will add that I don't understand this line from the linked article:

I don't personally care all that much about the level of illegal immigration. The current numbers strike me as reasonable.

I am not sure how anyone can consider the levels of illegal immigration reasonable.  Some Republicans obviously consider these numbers unreasonable because they want the immigrants gone.  But I, even as a strong immigration supporter with many immigrant acquaintances, think the number is unreasonable as well.  If we are going to de facto let these folks stay, why should we make every step of their life, from driving to banking to working, a total hassle?  Why make all these hard working and generally law-abiding people afraid every moment that they may get deported, or make them subject to the harassment whims of some jerk like Joe Arpaio?

There seems to be a large portion of the country that is willing to allow these folks to stay but want to create some kind of lower-tier immigration status for them.  Fine, then let's do that.  Let's create a lower-tier (e.g. reduced access to government services and benefits) of legal presence in this country -- guest worker, whatever -- that is simple to obtain and does not involve waiting on lists for a decade.

** This is something I have probably moved the furthest on in my life.  At sixteen, when I was a traditional Texas Conservative Republican, I supported immigration restrictionism.  Since then, I have found such a position incompatible with my belief in individual rights and free markets, and through my experience in life have come to appreciate the value immigrants bring to this country.

From this great article, here are two

 1.  Immigrants aren't here for the welfare, they are here to work

2.  Immigrants are much less likely to commit crimes than similar native-born folks

For years I have argued that immigration controls in this country are effectively a form of occupational licensing.  While US immigration controls are a terrible policy IMO, Germany's approach seems even worse.  They welcome people into their country but don't let them work, and then wonder why newly immigrated refugees can't find jobs.

In 2015, Germany waited the longest of any country in Europe to restrict the flow of asylum seekers from the Middle East. Yet once they arrived, the asylees who immediately sought work in Europe’s largest economy were greeted by bureaucracy. The law initially forbade asylees from seeking work for 9 months after their arrival, but was reduced to 3 months in November 2014. Then, inexplicably, at the height of the inflows, the German governmentbanned working if the asylee was forced to stay a reception center, which could be up to 6 months.

After the initial waiting period, asylees did not receive unrestricted employment authorization. Instead, they would have to find a “concrete” job offer—i.e. a firm must promise to hire them if the permit is granted—then apply for authorization. Even then, companies can only hire them during the first 15 months if the jobs are offered first to EU residents, and the federal labor department agrees that no one was willing to take. They also set asylee wages, which can price out low-skilled workers.

The hoops don’t end there. Asylees still have to get the approval of the immigration office at the municipal level. Under the law, it would take four years before they could compete equally with EU citizens.

On top of all these refugee-specific regulations, skilled workers are then tasked with proving that they can work in certain occupations. In order to obtain an occupational license, documentary proof of training—proof that’s often buried under bombed-out homes in Syria—is required. Some states in Germany allow asylees to demonstrate their skills in order to receive licensing, but others do not. “I am a dentist and could work, but what am I supposed to do? I am not allowed to work here!” one asylee told DW News.

Low-skilled immigrants haven’t avoided being targeted either. Germany introduced its first ever minimum wage in 2015—which disproportionately hits lower skilled migrants—and a study by the German government in August 2016 found that it had already cost 60,000 jobs.

Apparently, Denmark is considering a plan (WSJ, gated) to seize valuables from migrants to offset government costs.  I am sure this will work out just as fairly as do American asset forfeiture laws

Denmark’s minority government has secured cross-party backing for a plan to seize cash and valuables from asylum seekers to help meet the cost of their stay in the Nordic country despite criticism from the United Nations and some Danish lawmakers.

Details of how the plan, which could be adopted by parliament as early as next month, would be put into action remain scant.

Liberal Party lawmakers, who draw up the proposal, have provided few details other than to say that police won’t be taking people’s possessions as they enter the country. Police or other officials would appraise the value of people’s possessions as they check the identity of asylum seeks before deciding what, if anything, the new arrivals should pay.

A while back I wrote a controversial post saying that I don't see any moral difference between building a wall to keep people in a country vs. building a wall to keep them out.  **

For a period of time in the late 1930's, the German government was actually encouraging Jews to leave the country -- the one requirement, though, was that the government stripped them of all their property and valuables on the way out.  So I ask the same question slightly modified.  What is the moral difference between stripping refugees of their assets as the leave a country vs. as they enter a country?

** Several people argued the point by analogy, saying it is OK to lock people out of your house but not to lock them in your house.  Certainly, but this frequent use of exclusionary rights on private property as an analogy for an entire country is deeply flawed.  Essentially, for this to be a valid analogy, one would have to adopt Marxist definitions of state ownership of all property and totalitarian views on individual rights to argue that an entire country is just like a private house.

A while back I got a LOT of feedback when I asked if Republicans really wanted to create 12 million refugees.  My assumption was that if one opposed substantially liberalizing immigration quotas (ie making the quota near unlimited) and one opposed "amnesty" for the 12 million currently illegal immigrants in this country, the only alternative was to try to deport them all.

I got a lot of responses back from all over the political spectrum, but the one I found the most surprising was to say that I was setting up a false choice.  The only alternative to amnesty was not deportation.  Many advocated for what I would call an "illegal but tolerated" status for these 12 million people, sortof a parallel to how marijuana is treated in many states.  I have a few reactions to this:

1. Isn't this the status quo?  People got really angry with me in the comments for trying to create a straw man position (deportation) for Republicans by not considering this "illegal but tolerated" status.  But I can say with all honesty it never crossed my mind.  The one theme I get from every Republican candidate and nearly every Conservative pundit is that the current immigration situation is broken and intolerable.  So I am still confused.  If "amnesty" is still intolerable and the current situation is intolerable and deportation is not what they want (or at least not what they are willing to admit to in public) -- then what is it that Republicans want?
2. To avoid charges of racism or economic Luddite-ism (since both history and most economic studies show immigration to be a strong net positive), immigration restrictionists often argue that what they are really defending is the rule of law.  Immigration is illegal and what they can't abide is seeing so many people flaunt the law.  But what could possibly be more corrosive to the rule of law than an "illegal but tolerated" status?  We give effective amnesties all the time.  Colorado didn't wait to legalize marijuana until every past illegal user had been prosecuted.
3. "illegal but tolerated" is a license for abuse and harassment.  It is why organized crime flourishes in narcotics and in alcohol when it was illegal but tolerated.  It is why women get abused in prostitution.  It creates unpersons with limited access both to the legal system and to the basic plumbing of the modern world (e.g. banking).  It drives people underground, pushing people who at worst committed a victim-less crime (ie illegal immigration) into crimes with real victims (e.g. identity theft).
4. I continue to argue that Conservatives are abandoning their free market principles when they advocate for strict limits on immigration.  I have heard folks like Sheriff Joe say that these folks are "trespassing" in the US.  Well, they are only trespassing if we are Marxists and adopt the view there is no such thing as private property and everything belongs to the government.  In a free society, the actual questions involved are whether an immigrant can rent an apartment from me, or work for me, or bank with me, etc.  Those are supposed to be private decisions.   In effect, Conservatives are arguing that I can only hire from or rent to people on a government-approved list.  That does not sound like free markets and small government to me.

I am not blind to the problems that our generous welfare policies have on immigration.  I would argue that what is needed is a new immigration status.  In a sense, those who want 12 million people to be "illegal but tolerated" are essentially arguing for the same thing, but frankly that solution sucks for everyone.  I would argue for institutionalizing a new level of legal presence in this country, well short of "citizen" but beyond "illegal but tolerated."

As an aside, for years the Roman Empire was really good at this, at least in its early years.  It grew and adopted and eventually commanded the loyalty of a broad range of peoples and cultures in part because it was incredibly flexible in thinking about citizenship status.   It had many custom levels, such as Civitas sine suffragio (citizenship without the vote).  Many Conservatives argue that Barbarian immigration brought down the Roman Empire and use that as an argument for modern restrictions.  But in fact, I believe just the opposite -- that it was the Romans losing their knack for citizenship flexibility and integrating new cultures that contributed to their downfall.

Here is a plan I posted nearly 10 years ago for a new, legal, less-than-full-citizen ability to be present in this country.  I am still mostly OK with it:

1. Anyone may enter or reside in the US. The government may prevent entry of a very short list of terrorists and criminals at the border, but everyone else is welcome to come and stay as long as they want for whatever reason.  Anyone may buy property in the US, regardless or citizenship or residency.  Anyone in the US may trade with anyone in the world on the same terms they trade with their next door neighbor.
2. The US government is obligated to protect the individual rights, particularly those in the Bill of Rights, of all people physically present in our borders, citizen or not.  Anyone, regardless of citizenship status, may buy property, own a business, or seek employment in the United States without any legal distinction vs. US "citizens"
3. Certain government functions, including voting and holding office, may require formal "citizenship".  Citizenship should be easier to achieve, based mainly on some minimum residency period, and can be denied after this residency only for a few limited reasons (e.g. convicted of a felony).  The government may set no quotas or numerical limits on new citizenships.
4. All people present in the US pay the same taxes in the same way.  A non-citizen or even a short term visitor pays sales taxes on purchases and income taxes on income earned while present in the US just like anyone else.  Immigrants will pay property taxes just like long-term residents, either directly or via their rent payments.
5. Pure government handouts, like Welfare, food stamps, the EITC, farm subsidies, and public housing, will only be available to those with full US citizenship.  Vagrancy and squatting on public or private lands without permission will not be tolerated.
6. Most government services and fee-based activities, including emergency services, public education, transportation, access to public recreation, etc. will be open to all people within the US borders, regardless of citizenship status, assuming relevant fees are paid.
7. Social Security is a tough beast to classify - I would put it in the "Citizen" category as currently structured (but would gladly put it in the "available to everyone" category if SS could be restructured to better match contributions with benefits, as in a private account system).  But, as currently configured, I would propose that only citizens can accrue and receive SS benefits.  To equalize the system, the nearly 8% employee and 8% employer social security contributions will still be paid by non-citizens working in the US, but these funds can be distributed differently.  I would suggest the funds be split 50/50 between state and local governments to offset any disproportionate use of services by new immigrants.  The federal portion could go towards social security solvency, while the state and local portion to things like schools and medical programs.

It may be possible to earn-in to benefits in #5 and #7 based on some cumulative tax payment history.  For example, unemployment taxes are really close to an insurance policy, such that a couple of years of payments into the system could make one eligible for benefits.   Given how much fraud I see on this from citizens**, I can't believe immigrants would be any worse.

The other day John Hinderaker of Powerline wrote:

If someone proposes that next year we should import 10,000 unskilled immigrants from Pakistan, the first question we should ask is: why do we need them? But that is the one question that no one ever seems to pose.

This is a terrible question and to my eye shows just how close Conservatives come to accepting many of the assumptions of Socialism.

Socialists seldom think in terms of individuals, but instead talk about the economy as some great big machine that they get to run.  We all remember Bernie Sanders saying

“You don’t necessarily need a choice of 23 underarm spray deodorants or of 18 different pairs of sneakers when children are hungry in this country”

When Hinderaker is asking if we need more immigrants, or Sanders is asking if we need more deoderant choices, they are both working from an assumption that some authoritarian gets to sit at the top and make these choices for us.

The question "do we need immigrants" is actually senseless. Who is "we"? Who gets to make decisions for "we"? Only a socialist thinks this way. In a free society, the questions that matter are "Do I want to hire this immigrant?" or, as an immigrant, "do I want to take the chance of moving to an unfamiliar country to try to better my life." If I wish to hire someone from another country and they wish to move here and take the job, what the hell does it matter if John Hinderaker thinks this person is "needed"? I have decided I need a certain immigrant for my business, and the immigrant has decided that moving here is a good tradeoff for him.  In capitalism, that should be a done deal.

Could the immigrant or I be wrong about my employment offer being a good idea? Sure.  But authoritarian government second-guessing of individual decisions is supposed to be a progressive-socialist game, and here is a prominent Conservative doing exactly the same thing.  If Bernie Sanders wanted to require me to get government permission to produce a new flavor of deodorant, Hinderaker would be outraged.  But never-the-less he similarly wants me to get government permission (actually he wants to deny me government permission) to hire the employee I want to hire.

All this "Amercan jobs for Americans" thing may sound nice, and get head nods at the local Rotary, but what it actually means is that individual business people like myself have to be limited to hiring from a government-approved list.  Doesn't sound much like the free markets and small government Conservatives claim to want.

Hinderaker quotes approvingly from David Frum

However one assesses [the Farook family] chain and its consequences, it seems clear that the large majority of legal immigrants choose to come—or, more exactly, are chosen by their relatives—for their own reasons. They are not selected by the United States to advance some national interest. Illegal immigrants are of course entirely self-selected, as are asylum seekers. …

Donald Trump’s noisy complaints that immigration is out of control are literally true. Nobody is making conscious decisions about who is wanted and who is not, about how much immigration to accept and what kind to prioritize—not even for the portion of U.S. migration conducted according to law, much less for the larger portion that is not.

Doing things for one's own reasons.  Self-Selection.  Lack of government control.  Lack of government decisions about who or what is wanted.  Lack of national priorities.  These all sound like ... capitalism and a free society.   Replace the word immigration with any other term and Conservatives would blast these two sentences and Bernie Sanders and Barack Obama would vigorously nod.  I could write a $15 minimum wage screed using almost these identical words from Frum.    Here, let me try:

However one assesses [the John Smith] $8 wage and its consequences, it seems clear that the large majority of employers set wages for their own reasons. These wages are not set by the United States to advance some national interest. The wage rates are entirely self-selected by employers and employees.

Bernie Sanders's noisy complaints that wage rates and income inequality are out of control are literally true. Nobody in government is making conscious decisions about who is hired and for how much, about how much income to accept and what kind to prioritize.

Postscript:  Yes, I know that Conservatives are all worked up because 1 in a 1,000 or so of our immigrants might be murderers.  You know what, one in a thousand Americans born every day will likely grow up to be murderers, but we don't ban sex.  We accept the consequences that we get a few bad apples along with a lot of awesome productive people.

I would also ask Conservatives this -- why don't you think the Left's desire to ban gun ownership to head off mass shootings is fair?  I would suggest one reason is that it is unfair to ban legal gun ownership for 1,000 good people because one will use their gun to commit a murder.  If you agree with this statement, explain why your argument against immigration is different from the Left's call to ban gun ownership.

Left & Right each hope to ban large group (Gun owners & Muslims, respectively) from US because 0.1% of them might be dangerous @instapundit

— Coyoteblog (@Coyoteblog) December 11, 2015

Mickey Kaus wonders why the GOP elite is still "clinging to amnesty" for illegal immigrants.  I have the same thought every time I hear someone rail against "amensty":  What the f*ck else are we going to do?  Put 12 million people in jail for violating immigration laws?  Are we really talking about deporting 12 million people?  Do you have any idea how ugly this will be?  I don't want to commit a Godwin's Law violation, but rousting people -- whole families -- out of their homes at gunpoint and loading them up on trucks and trains to be shipped en mass somewhere else -- does this sound like any other 20th century event to you?  If you wanted to find some other precedent for this that was not the German shipping of Jews to Poland, what would even be close?

Looked at another way, the disastrous government and civil war in Syria has created, by UN estimates, 4 million refugees.  At a stroke, do Republicans really want to create 12 million refugees?  I get it that there is an ugly populist sentiment in a percentage of the Republican base to let Mexicans go hang, but the definition of responsible leadership in a Republic has got to include ignoring, or at least defusing, these sentiments.  But the current crop of Republican Presidential candidates seem no more willing to avoid this particular evil than Democratic candidates can seem to rise above ugly sentiments in their base to put the 1% richest people up against a wall.

I find this meme to be silly and unconvincing.

It is not unreasonable to expect that 0.1% of any population is potentially dangerous.  By this meme's implied logic (that if any of the refugees are bad we should not take any of them) we would never have allowed so much immigration of any sort in the past, immigration that has been undeniably beneficial to this country.  But going further, by this logic we would not even allow procreation -- the number is hard to get at but 0.1% is not an unreasonable guess as to the chance that any person born today might end up being a murderer.

From Eugenics and Economics in the Progressive Era by Thomas C. Leonard (link via Don Boudreaux, I think).

It was a scholarly fashion, circa 1890, to declare the U.S. frontier “closed” and to sound a Malthusian alarm about excess American population growth. But the professional economists who wrote on immigration increasingly emphasized not the quantity of immigrants, but their quality. “If we could leave out of account the question of race and eugenics,” Irving Fisher (1921, pp. 226–227) said in his presidential address to the Eugenics Research Association, “I should, as an economist, be inclined to the view that unrestricted immigration . . . is economically advantageous to the country as a whole . . . .” But, cautioned Fisher, “the core of the problem of immigration is . . . one of race and eugenics,” the problem of the Anglo-Saxon racial stock being overwhelmed by racially inferior “defectives, delinquents and dependents.”

Fear and dislike of immigrants certainly were not new in the Progressive Era. But leading professional economists were among the first to provide scientific respectability for immigration restriction on racial grounds.2 They justified racebased immigration restriction as a remedy for “race suicide,” a Progressive Era term for the process by which racially superior stock (“natives”) is outbred by a more prolific, but racially inferior stock (immigrants).

Note that the authors of the time were not using race as we do -- by "other races" whose immigration into the US was going to destroy us, they meant Southern Italy, Russia, Austria, Hungary, and the rest of Eastern Europe.   Fifty years earlier, they would have meant the Irish.   All of who we would today consider part of the backbone of America.  Why do we have to take these ideas seriously today when they have been wrong so consistently in the past?

I have never made for a particularly good Internet troll.  Seeing too much nuance can disqualify one.  I have made a number of climate posts that have gotten a lot of attention and backlash, but that is a debate where saying even obvious things like "20 degrees C is not twice as warm as 10 C" will get one a swarm of comments labeling one as an extreme Koch-funded denier [as an editorial aside, this is not a joke example -- I have actually had experiences like this multiple times, trying to correct media articles that say that, say, an increase of 3C over current average temperature 12C represents a 25% increase.  Mark Steyn has a great riposte to this, arguing that if they would just switch to Fahrenheit, then the percentage warming would be reduced.  The same journalists making this mistake have likely labelled skeptics as "anti-science".]

All that being said, and I am not sure why I can't produce a simple one sentence post, I have hit some sort of record for this blog, with over 200 comments on this immigration fence question.

One of the reasons, I think, that we struggle so much with the immigration question is that we really only have two options to offer -- not letting people in, or giving them close to full citizenship rights.  I think we would have the same debates on whether we should let people drive if the only two speeds a car could go were zero and 90 MPH.

For most of the people who are trying to get into this country illegally, the issue is not necessarily that they want full citizenship -- they just want to be present.  They want to be able to live, and drive, and accept employment.   While they would like it, they don't necessarily need to vote or be eligible for social security disability payments.   We need new statuses that allow for presence and productivity but are short of full citizenship.

In this sense, I think many Conservatives are 180 degrees wrong when they invoke the experience of the Roman Empire.  The modern argument is that the Romans are an example of what happens when you allow yourself to be overwhelmed by "barbarians" from the outside.  But in fact, I have argued many times that the real Roman failure was that they lost their early ability to flexibly absorb people of other cultures.  Here is what I wrote in my take on five reasons for the fall of the Roman Empire:

3.   The Romans lost their ability to be innovative in including new peoples in their Empire.  The Romans had a bewildering array of citizenship and tax statuses for different peoples who joined or were conquered by the empire.  For hundreds of years, this innovation was hugely successful.   But by the 4th and 5th centuries they seemed to have lost the trick.  The evidence for this is that they could have solved multiple problems -- the barbarians at the gates and the abandonment of farm land and the need for more soldiers -- by finding a way to settle barbarians on empty farm land.  This is in fact exactly what the barbarians wanted.  That is why I do not include the barbarian invasions as one of my five, because it did not have to be barbarian invasions, it could have been barbarian immigration.  Gibson's thesis was that Christianity killed the Roman Empire by making it "soft".  I don't buy that, but it may have been that substituting the Romans' earlier incredible tolerance for other religions in their Pagan period with a more intolerant version of Christianity contributed to this loss of flexibility.

And if you really want a modern parallel with the fall of the (western) Roman Empire, try this other point I made:

4.   Hand in hand with #3, the Roman economy became sclerotic.  This was the legacy of Diocletian and Constantine, who restructured the empire to survive several centuries more but at the cost of at least an order of magnitude more state control in every aspect of society.  Diocletian's edict of maximum prices is the best known such regulation, but in fact he fixed most every family into their then-current trades and insisted the family perform the same economic functions in all future generations.  Essentially, it was Ayn Rand's directive 10-289 for the ancient world, and the only reason these laws were not more destructive is that the information and communication technologies of the time did not allow for very careful enforcement.

The current refugee surge into Europe has caused a lot of my friends who are immigration restrictionists to say this proves that I am naive.

During the Cold War, we (including most Conservatives) considered it immoral that Communist countries would not let their people leave (Berlin Wall, etc.).  Now, however, it is argued by many of these same folks that it is imperative that the Western democracies build walls to keep people out.

So here is a question -- not of practical consequences, but of pure morality.  Consider this picture of people being prevented from crossing the border.

Explain to me why this scene is immoral if the wall and police forces were put there by the country at the right (the leaving country) but suddenly moral if the same wall with the same police force were put there by the country on the left (the receiving country).  Don't they have exactly the same effect?  Same wall -- How are they different?

Virtually every study done points to the fact the immigrants, even illegal immigrants, are less prone to crime than American citizens.  That is why immigration opponents must rely on repetition of lurid single examples to try to make their case, a bit like global warming advocates point to individual heat waves as a substitute for having any warming show up in the recent global temperature metrics.

From the Foundation for Economic Education

With few exceptions, immigrants are less crime prone than natives or have no effect on crime rates. As described below, the research is fairly one-sided.

There are two broad types of studies that investigate immigrant criminality. The first type uses Census and American Community Survey (ACS) data from the institutionalized population and broadly concludes that immigrants are less crime prone than the native-born population. It is important to note that immigrants convicted of crimes serve their sentences before being deported with few exceptions.

However, there are some potential problems with Census-based studies that could lead to inaccurate results. That’s where the second type of study comes in. The second type is a macro level analysis to judge the impact of immigration on crime rates, generally finding that increased immigration does not increase crime and sometimes even causes crime rates to fall.

Butcher and Piehl examine the incarceration rates for men aged 18-40 in the 1980, 1990, and 2000 Censuses. In each year, immigrants are less likely to be incarcerated than natives with the gap widening each decade. By 2000, immigrants have incarceration rates that are one-fifth those of the native-born

There is a lot more at the link.

One of my critiques of global warming alarmists is that they are trying to use a type of observation bias to leave folks with the impression that weather is becoming more severe.  By hyping on every tail-of-the-distribution weather event in the media, they leave the impression that such events are becoming more frequent, when in fact they are just being reported more loudly and more frequently.  I dealt with this phenomenon in depth in an older Fortune article, where I made an analogy to the famous "summer of the shark"

...let’s take a step back to 2001 and the “Summer of the Shark.”  The media hysteria began in early July, when a young boy was bitten by a shark on a beach in Florida.  Subsequent attacks received breathless media coverage, up to and including near-nightly footage from TV helicopters of swimming sharks.  Until the 9/11 attacks, sharks were the third biggest story of the year as measured by the time dedicated to it on the three major broadcast networks’ news shows.

Through this coverage, Americans were left with a strong impression that something unusual was happening — that an unprecedented number of shark attacks were occurring in that year, and the media dedicated endless coverage to speculation by various “experts” as to the cause of this sharp increase in attacks.

Except there was one problem — there was no sharp increase in attacks.  In the year 2001, five people died in 76 shark attacks.  However, just a year earlier, 12 people had died in 85 attacks.  The data showed that 2001 actually was  a down year for shark attacks.

Yesterday I was stuck on a stationary bike in my health club with some Fox News show on the TV.  Not sure I know whose show it was (O'Reilly?  Hannity?) but the gist of the segment seemed to be that a recent murder by an illegal immigrant in San Francisco should be taken as proof positive of the Trump contention that such immigrants are all murderers and rapists.  The show then proceeded to show a couple of other nominally parallel cases.

Yawn.   It would be intriguing to flood an hour-long episode with stories of legal American citizens committing heinous crimes.  One wonders if folks would walk away wondering if there was something wrong with those Americans.

One could pick any group of human beings and do a thirty-minute segment showing all the bad things members of that group had done.  What this does not prove in the least is whether that group has any particular predilection towards doing bad things, or specifically in the case of Mexican immigrants, whether they commit crimes at a higher rate than any other group in this country.  In fact, everything I read says that they do not, which likely explains why immigration opponents use this technique, just as climate alarmists try to flood the airwaves with bad weather stories because the actual trend data for temperatures does not tell the story they want to tell.

John Hinderaker had an article titled "THE TIMES GOES KNOW-NOTHING ON IMMIGRATION".  In it, he criticizes the New York Times' for being too supportive of open immigration.  He proceeds to point out what he believes to be serious negatives of immigration.

I won't go back to my defenses of immigration today.  But I did find his article title ironic.  Was it purposefully so?  I can't imagine that it was.  The word "Know-Nothing" is most associated in American History with the Know Nothing party, formerly the Native American party (meaning "native" white folks, not indigenous peoples).  As you might guess from the name, their main rallying cry was to limit or stop immigration -- at the time their ire was mainly aimed at the Irish.

This is obviously ironic because from historical use, it is Hinderaker that is going know-nothing, not the Times.   And further ironic because the Irish, whom the Know Nothings wanted to keep out, now are considered by most Conservatives to be part of the backbone of America that is being threatened by all these new immigrants.  Most of the arguments he uses against immigrants are virtually identical to those used, and since proven incorrect, by the Know Nothings in the 19th century.

Postscript:  The term Know-Nothing, if I remember right, came not because they were ignorant, but because they tended to be very secretive.  When asked about their party, they would answer that they know nothing (this works best for those who watched Hogan's Heroes and can say this in a sergeant Schultz voice; if you are too young for Hogan's Heroes, then imitating Ygritte in GOT is acceptable).

Conservatives say they are for free markets and free enterprise, but then I read stuff like this (have have added the bold):

Lynch supports Obama’s unconstitutional amnesty, believes illegal immigrants should have the same rights to employment as American citizens, opposes voter ID laws, advocates federal intrusion in local law enforcement under the guise of civil rights, supports the government taking private property on flimsy grounds, and offers no opposition to using drones against American citizens.

I agree with some of these concerns, but the one in bold is a real head scratcher.   What theory of free markets do Conservatives hold that accepts as valid the government licensing of labor?  On what possible grounds should a government bar me from hiring, say, a Russian immigrant to do my programming?  Or crazier still, why can I hire a Mexican in my Mexico office but can't have the same person working for me in my Phoenix office?

I have a theory about the Romans that is probably shared by nobody.  The Romans were strong and powerful and vital when they were creating a variety of citizenship types to accommodate multiple peoples who entered the empire in multiple ways.  In particular I think of civitas sine suffragio or citizenship without the vote.  But this was just one of many variations.   By the first century AD  (or CE per the modern academic trend), a lot of people of a lot of cultures and races and over a wide geography called themselves Romans.

By the end of the empire, the "reforms" of Diocletian and Constatine purged all flexibility from both governance and the economy (in sum, their laws amounted to the Directive 10-289 of the ancient world).  By the time the Empire started falling apart, they had lost all ability to integrate new peoples or innovate with citizenship models.  What was eventually called the Barbarian invasions began decades earlier as the attempted barbarian migrations.   The barbarians wanted to just settle peacefully.  And Rome desperately needed them -- their system was falling apart as their farms and countryside was depopulated from a combination of government policy and demographic collapses (e.g. plagues).  Rome desperately needed new people to settle their farms and form the new backbone of the army and the barbarians desperately wanted to settle and had a lot of military skill, but they couldn't make it work.

First, congrats to many millions of people who can remain in this country, a status they should have always have had.  We can argue whether anyone who makes his or her way over the border should be able to vote or draw benefits, but there is no doubt in my mind that they should be able to live anywhere they can pay the rent and work anywhere that there is an employer willing to pay them.

I am willing to accept the analysis of folks like Ilya Somin who say that the President's non-enforcement decision on immigration laws is legal.  But I think his concept of "precedent" when he says there are precedents for this sort of thing is way too narrow.  This is an important, dangerous new precedent.

What I think folks are missing who make this argument about precedent is that while many examples exist of the Executive Branch excercising proprietorial discretion, the circumstances are without precedent in both scale and well as in its explicit defiance of legislative intent.  One can argue that Reagan's executive actions vis a vis immigration provide a precedent, for example, but Reagan was essentially following the intent of then-recent Congressional legislation, arguably just fixing flaws with executive orders in the way that legislation was written.  What he did was what Congress wanted.

The reason I think Tiberius Gracchus is a good analog is that Gracchus too took actions that were technically legal.  Tribunes always technically had the legal power to bypass the Senate, but in hundreds of years had never done so.  Despite their technical legality, his actions were seen at the time as extremely aggressive and plowing new Constitutional ground, ground that would soon become a fertile field for authoritarians to enhance their power.

Somin includes the following, which I think is an example of where defenders of the President's process (as different from the outcomes) are missing reality.  He writes:

I would add that the part of the president’s new policy offering work permits to some of those whose deportation is deferred in no way changes the analysis above. The work permits are merely a formalization of the the president’s exercise of prosecutorial discretion here, which indicates that the administration will not attempt to deport these people merely for being present in the United States and attempting to find jobs here. They do not purport to legalize their status, and the policy of nondeportation can be reversed at any time by the president or his successor.

This is one of those statements that are technically true, but totally obtuse at the same time.   Issuing formal get-out-of-jail-free cards to 5 million people is unprecedented.  Think of it this way:  Imagine a Republican President who is opposed to the minimum wage.  The Executive branch is tasked with enforcing that law, so wold the folks defending the President's methods also argue hat the government can issue permits to 5 million businesses allowing them to  ignore labor law?  Or emissions standards?  Or insider trading laws?

People are just being blinded by what they rightly see as a positive goal (helping millions of people) if they fail to see that the President issuing licenses to not be prosecuted for certain crimes is a huge new precedent.  Proprietorial discretion is supposed to be used to avoid patent unfairness in certain cases (e.g. the situation in Colorado with conflicting state and Federal laws on marijuana).  It is not meant to be a veto power for the President over any law on the books.  But I can tell you one thing -- it is going to be seen by future Presidents as just this.  Presidents and parties change, and for those of you swearing this is a totally legal, normal, fully-precedented action, be aware that the next time 5 million wavers are issued, it may well be for a law you DO want enforced.  Then what?

Update:  Libertarians are making the case that the Constitution never gave Congress the power to restrict immigration.  I could not agree more.  However, I fear that will have zero impact on the precedent that will be inferred from all this.  Because what matters is how the political community as a whole interprets a precedent, and I think that this will be interpreted as "the president may issue mass waivers from any law he does not like."  Now, since I dislike a hell of a lot of the laws on the books, perhaps over time I will like this precedent.  But the way things work is that expansive new executive powers seldom work in favor of liberty in the long run, so I am skeptical.

Hard to believe, but it looks like a number of local business people are going to go to jail for trying to hire the workers who served their customers best:

Workers hired at Danny’s Family Car Wash to replace scores of suspected illegal immigrants proved so problematic that the company’s top executives ordered lower-level managers to bring back the original laborers, two of the managers say in court documents.

As part of plea agreements that could cut their own time behind bars, Oscar Ivan Aguilar-Gastelum and Miguel Mejia-Estrada said that Danny’s fired suspected illegal workers in April 2011 after a government audit and replaced them with new employees. However, the new hires generated complaints, and Aguilar-Gastelum said in court papers that he was instructed to start rehiring the employees who had just been fired...

Aguilar-Gastelum and Mejia-Estrada each face up to five years in prison for conspiracy, though their cooperation and other factors could significantly reduce their eventual sentences. Both men have had their sentencing delayed at least three months as the government investigates any information they have offered in the case.

Some libertarians, who would normally be all for open immigration, have expressed concern about -- in the name of liberty -- allowing into the country people who will generally vote against it.  I have at times shared this concern but in the end find it wanting.

However, I have personally observed this happening in both of the recent states in which I have lived (Arizona and Colorado).  But the source of the problem has not been immigration from Mexico or any other country but from California.  Californians seem hell-bent to escape the mess they have made of their state.  They run to other states complaining of the disaster they are escaping.  And then they proceed to vote for the same taxation and regulatory policies that screwed up California.

Arizona state politicians are excited to get all that new income tax money.  While I am happy to see new wealth and talent flowing into our state, I fear that these new immigrants are plague carriers, bringing the virus of out-of-control state power to heretofore only mildly infected states.