When it comes to the immigration debate, very few people advocate for either totally closed borders or totally open borders. However, as soon as it is admitted that at least some movement across borders ought to be allowed — or that at least some of the migrants are to be regulated — the question quickly arises: which migrants are to be allowed, and which are to be prevented entry?
Rhetorically, this problem is often dealt with today by an appeal to government authority. Namely, it is often stated that “legal” immigrants are fine, but “illegal” immigrants are bad.
This, of course, misses the point. The question still remains: which immigrants ought to be considered legal and which illegal? What ought to be the standard of determining legality?
The History of “Undesirable” Migrants
In the nineteenth century, immigrants were said to be either desirable or undesirable based on specific traits. Immigrants that were determined to be unable to work, mentally ill, prone to criminality, or likely to become dependent on state assistance were deemed undesirable. This was — at least in theory — applied across the board, regardless of country of origin. Prior to the 1880s, this determination was usually made by state or local authorities. And those who were deemed undesirable could also be deported.
These sorts of laws go back to pre-Revolution times and even back to England in some cases, where “poor laws” were introduced to regulate vagrants and what we would today call “welfare recipients.” Local governments were empowered to prevent the local poverty-relief funds from being overwhelmed by new residents looking for what we’d today call “social benefits.”
State-based restrictions on movement, for example, were written into the Articles of Confederation which noted interstate movement was not guaranteed to “paupers, vagabonds and fugitives from justice.”
Later, states that received large numbers of foreign migrants, such as Massachusetts and New York, focused on refusing entry to people suspected of being mentally ill, physically disabled, potential paupers, or criminals.
Note, however, that these laws set out specific criteria for individual persons. Those who were deemed able to support themselves and be no burden on the public purse were allowed to stay.
Even national policy — most of which failed to gain passage in Congress — directed federal officials to ensure that new immigrants “were not paupers, nor convicts.”
Thus, it is not surprising that Gerald Neuman concludes in his survey of nineteenth-century immigration policy: “Neither Congress nor the states attempted to impose quantitative limits on immigration” [emphasis in the original].
Later Attempts at Quotas
The Chinese Exclusion Act of 1882 signaled the first attempt by the federal government to enact general peacetime exclusions of people based on group membership.
But even that idea did not work its way into the first broad national policy found in the Immigration Act of 1891. The 1891 legislation continued to stick to the policy of excluding people based on undesirable traits found in individuals. Historian Hidetaka Hirota lists the criteria:
The 1891 law also expanded the excludable category to cover people with mental defects and insanity, paupers and people “likely to become a public charge,” people with contagious diseases, people convicted of a felony of other crime involving “moral turpitude, polygamists, and assisted emigrants” — making all of them deportable.
It was only in the twentieth century that federal policies then turned toward quota systems.
The Immigration Act of 1917 expanded bans on immigrants from Asia, above and beyond the Chinese exclusion. Sticking to the policy of individual litmus tests, however, the new legislation also required literacy tests of new immigrants.
With the 1924 Immigration Act, however, true quotas were introduced for the first time. The quota was
set at three percent of the total population of the foreign-born of each nationality in the United States as recorded in the 1910 census. This put the total number of visas available each year to new immigrants at 350,000.
The restrictions did not apply to migrants from the western hemisphere.
But why set the quota as a percentage of foreign born as recorded in the census? Is this based on any objective standard?
Of course not. It’s a number pulled out of thin air by politicians. Moreover, adopting an arbitrary number for the “correct” number of immigrants from a certain country is akin to declaring a quota for the “correct” number of shoes to be imported into the country. Nor are government agents qualified to determine the “correct” number of tons of steel or pounds of sugar allowed into the country.
Those who support such quotas will nevertheless often attempt to mask their arbitrary nature by claiming anyone who opposes quotas is for totally open borders.
But, as Neuman noted, the border-control scheme that prevailed during the nineteenth century — one that refused entry to presumed paupers and criminals — was anything but an open-borders situation.
There is no denying that the border controls were difficult to enforce. Much of this was due, however, to the technological limitations of the time.The tools available to states and towns in identifying those who were ill or disabled were extremely limited. Moreover, it was difficult to determine ahead of time if new migrants were likely to become dependent on state services.
To deal with this state governments began to require bonding from those involved in the importation of migrants. Neuman writes:
Beginning in 1820 ... Massachusetts returned to the colonial system of demanding security from masters of vessels when their passengers seemed likely to become paupers. The 1820 statute required a bond to indemnify the town and the Commonwelath for expenses arising within three years with respect to any passenger lacking a settlement in the Commonwealth who was considered liable to become a public charge.
This law was later modified in 1837, including new provisions under which
the master was forbidden to land without bond any alien passenger found upon examination to be within a group of categories of persons presenting a high risk of becoming a public charge, including those with mental or physical disabilities.
The bonding requirement went even further in 1852 when:
the state authorized officials to demand bond or a higher commutation payment to cover passengers whom they judge to present an intermediate risk of future indigence ... [after the bonding requirement for intermediate-risk migrants was abolished in 1872] Bonding of high risk passengers continued ... as did a newer requirement of bonding by corporations importing labor into the state.
Similar laws were adopted in other port cities, especially New York, and applied in attempts to minimize costs associated with new migrants turned paupers.
The focus, of course, was not on overall numbers, but on avoiding costs associated with new migrants who were unable or unwilling to support themselves.
Unlike a blanket quota system, the targeted approach is more rational, non-arbitrary, and attempts to get at the true heart of most political objections to immigration — namely, that new migrants will become a drain on public amenities or engage in criminal behavior.
Given the problems and expense of general enforcement, however, it’s easy to see why the Massachusetts legislature turned to bonding as shifting the burden of pauper immigrants to those who “sponsored” them in some way.
The Individual Approach Is Better
Indeed, a system of sponsoring migrants through bonding has potential as a far more reasonable means of insuring that new migrants are actually being invited into the destination country, and will not become public charges.
Tho Bishop, for example, has examined this issue in light of refugees, but it can be applied to all sorts of migrants. Ryan Khurana has also written on the potential for sponsorship-based migration policies.
After all, if an employer, family members, or church organization wishes to invite a new migrant into the country to work or live, a basic respect for the rights of private property and free contracting would prohibit the state from interfering. However, if there remains a concern that the new migrants might live off the public purse, the strategy of bonding would be far less disruptive and arbitrary than government-invented quotas on how many migrants are to be allowed entry.
If migrants go on the public dole, or engage in criminal behavior, bonding would allow for the taxpayers to recover their costs from the sponsors. The migrant in question would presumably be deported for breaking the bonding agreement.
The superiority of this system over the general quota system is evident since it would allow for private organizations to freely engage with employees, contractors, and family members who would be arbitrarily excluded under a quota system — even if they did not engage in criminal behavior or fail to support themselves financially.
Some anti-immigration hardliners might nevertheless take exception to this, claiming that it is administratively too costly. By arguing this, however, they would essentially be making the collectivist claim that private property rights can be voided for entire groups of people based on assumptions about one small portion of the group. We hear similar arguments when opponents of physical cash claim cash ought to be abolished because some people use cash for criminal enterprises. There’s no denying that some criminals use cash. Is this therefore justification for destroying the property rights of all users of cash? Clearly not. Nevertheless, arguments in favor of broad quotas or outright bans on migrants based on group membership employ this essential logic.
