The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The recent tragic deaths of some 50 undocumented migrants in a truck in Texas highlight the perils of illegal migration. Republicans such as Texas Gov. Greg Abbott have rushed to blame President Biden's "open border policies." The truth is the exact opposite. Most of the dangers of illegal migration arise precisely because it is illegal. If the US actually had an "open border" policy, these 50 people would almost certainly be alive today. They would not have had to rely on shady smugglers to secretly cross into the United States. They could have just done so openly, using conventional modes of transportation.
Today, we readily understand that most of the crime, violence, and other risks of alcohol Prohibition was the result of prohibition itself. Once alcohol sales became legal again, people who wanted to purchase beer or wine didn't have to rely on Al Capone and other criminals to obtain it, and didn't face any significant risk of violence or fraud in the process of doing so. And there was no longer a vast illegal market for organized crime to exploit.
Alcohol prohibition created opportunities for criminals and con artists, some of whom did morally reprehensible things as a result. But the greatest share of blame for what happened belongs to the government officials who enacted Prohibition in the first place. Much the same is true of the War on Drugs—and our current regime of immigration prohibition.
I recently finished teaching my Immigration class at the University of Palermo. During the last week, we visited a Catholic charity that helps Sicily's migrants. The workers seemed like nice people, but they were deeply economically illiterate. They didn't have a bad word to say about the Italian government, the organization that makes immigration a presumptive crime. Quite the opposite…
Don't imagine, however, that the charity workers were all-forgiving. They were eager to condemn two sets of allegedly monstrous villains.
First, human smugglers.
Second, farmers who hire illegal workers.
Why? The argument, in both cases, comes down to: Smugglers and farmers make lots of money by treating migrants terribly.
To be clear, I'm the first to admit that illegality partially undermine businesses' standard incentives to do a good job. Not only are you unable to sue an illegal business for poor behavior. Far more importantly, reputational incentives are less potent in illegal markets. If you run the best grocery store in your area, you're the talk of the town, and get rich. If you run the best human smuggling operation in your area, word travels softly and slowly—and maybe lands you on the radar of the authorities.
Still, even illegal markets often deliver the goods. Indeed, that is the norm.
The charity workers talked as if human smugglers' standard procedure was to rob and murder their customers. But if this is so, how did millions of people successfully cross from North Africa to Europe? Furthermore, without illegal employment, what would illegal immigrants do after they arrive?
Yes, some smugglers just take migrants' money, then vanish. Yes, some farmers promise to pay migrants for work, then stiff them. Normally, however, illegal businesses fulfill their promises.
If you're already a comfortable legal resident of the First World, you'll probably be horrified by the content of these promises…. Smugglers charge thousands of Euros to move migrants on rickety boats. Farmers pay two Euros an hour, plus substandard room and board, to migrant workers. When I insisted that, "This is still much better than nothing," the charity workers were appalled. Migrants aren't making the best of a bad situation; they're being "roped-in" by vicious criminals.
To be blunt, I'm right and they're wrong. Yes, human smugglers charge high prices. Yes, farmers pay low wages. But the reason for these unfavorable market conditions is the oppression of the Italian government. Under open borders, migrants would travel by safe commercial channels—and be free to shop around for their best job option. It is the Italian government that pushes migrants into the shadows. And doing business in the shadows is a great burden. For transport, this means low supply and high fees. For employment, this means low demand and low wages.
What is true of Italian migration restrictions is also true for the United States. Our policies make it nearly impossible for most would-be migrants to enter legally. As a result, people wishing to flee horrific poverty and oppression have little choice but to try to enter illegally, which in turn often requires dealing with smugglers. If they want to support themselves after entry, they have to deal with employers willing to hire people illegally.
As in almost any illegal market, some of the participants are likely to be unscrupulous criminals and swindlers (though, as Bryan notes, the majority keep their promises). And, as in the case of Prohibition, by far the best way to cut back on the role of criminals and swindlers in an illegal market is legalization.
Some advocate addressing the bad behavior of unscrupulous employers by adopting "employer-only" approaches to immigration enforcement. For reasons I summarized here, that is both unjust and likely to cause great harm to migrants, not just their would-be employers. In a November 2020 post, I made the case against the common "I'm for legal immigration" trope against liberalizing immigration restrictions.
Obviously, it is still possible to argue for immigration restrictions based on the theory that governments have an inherent right to exclude people, or that exclusion is needed to prevent some great harm immigration might cause. I don't try to address such theories here, though I do take them up in detail in my book Free to Move. But if you support large-scale immigration restrictions for such reasons, you have to accept the fact that the resulting prohibition regime will predictably lead to tragedies like the one that just occurred in Texas. If you want to justify restrictions, nonetheless, you need to show that the benefits achieved are at least great enough to outweigh these awful costs.