George Mason University law professor Ilya Somin argued recently from his perch at the Volokh Conspiracy that “[i]mmigrants who commit offenses worthy of retribution should be punished. But they should not be subjected to any more punishment than native-born Americans who commit the same crimes. That means they should not be deported, unless deportation is also imposed on natives” (emphasis added).
Somin acknowledges that his position is outside the mainstream, and he rests his argument on the moral arbitrariness of deporting immigrants. In his words, “[I]t is wrong to punish people for morally arbitrary characteristics that are beyond their control.” Such characteristics include “race, gender, ethnicity, and—in this case—where you happen to be born, and to which parents . . . Even if a person has committed an offense that merits retribution, it is wrong to inflict additional punishment on them simply because they have the wrong parents” (emphasis in original).
What’s wrong with that? The problem is, Somin simply takes for granted that citizenship status is a “morally arbitrary” characteristic. He really doesn’t even assert this; he simply assumes it to be true. Except, it’s not at all obvious that being an immigrant, whether legal or not, is irrelevant to the sorts of punishments for which one should be eligible.
One can only come to Somin’s position by taking for granted that a nation presumptively has no right to exclude foreigners, or to decide on what terms they will enter the nation, or when and how they will become citizens—if at all. But that clearly has not been the historical norm; nations have exercised their right to exclude for all sorts of reasons and have opened up or restricted immigration throughout history. Our own present-day, wide open immigration policy is, by no means, a preordained state of affairs.
Somin’s view seems to be predicated on the notion that a nation-state is just a place where people congregate to engage in commerce or some such minimal amount of activity. Instead, if one sees a nation-state as something more—a repository of historical memory, a land of shared symbols, a particular place populated by people who partake in common rituals, traditions, and understandings of the world—then it makes sense that those who are citizens of that nation-state would be loath to permit entry of those whom they believe would not readily embrace or adapt to that project.
Perhaps if Somin were distinguishing between legal and illegal immigrants, he would have a point. It probably would be (morally) wrong to deport legal immigrants for anything but serious, violent felonies (e.g., murder, rape, armed robbery), and perhaps, too, it would be imprudent (which is not to say immoral) to become too enthusiastic with a deportation regime—even one that focuses most of its resources on illegal immigrants. But this is quite different from Somin’s position: that no immigrant can be deported at all unless natives are also subject to deportation.
That is also why Somin’s position that “[d]eportation of immigrants convicted of crimes might not be a major moral problem if it was limited to those who commit very serious offenses” is rather puzzling. How, precisely, is the seriousness of the offense relevant? If it is deeply immoral to deport any criminal immigrant—illegal or otherwise—because that subjects them to an enhanced punishment to which natives are not subject, then why does the seriousness of that crime matter at all? If we buy Somin’s argument about the “arbitrary” nature of characteristics that make one a non-citizen, what is it about murder versus, say, mail fraud that suddenly transforms the subsequent deportation from “illegitimate” to “legitimate”?
It appears to be nothing more than an unprincipled attempt to correct a deeply misguided view with unsavory implications—i.e., no immigrant, no matter how heinous their crimes, could ever be deported—but it doesn’t hold water. If immigrants can’t be deported when they commit a crime because to do so would be on the basis of some arbitrary characteristic, and this is wrong, then the seriousness of their crime shouldn’t matter, either—unless Somin provides an argument for why “seriousness of the crime” can suddenly outweigh “discriminatory, enhanced punishment.” But he doesn’t, and we have no reason to think it does.
Somin’s view is confused because his concept of the nation-state is too thin to support anything beyond procedural liberalism: a commitment to pretending that all persons are exactly the same morally—even when they’re clearly not.
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