Bryan Caplan  

Nullification or Nothing

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Arnold doesn't share my conditional jubilation over Obama's semi-amnesty.  Arnold's in blockquotes, my replies follow.
Even if you want open borders, I am not sure that this is how you want your goals accomplished.
I see no other politically possible way this could happen.  Waiting for the median voter to come to his senses is like waiting for Godot.
My reading of the policy is that the President is nullifying a law by refusing to enforce it. That is a precedent that could come back to haunt us.
I say the laws on the books are so overwhelmingly wrong that even random Presidential nullification would be a huge expected improvement. 

My question for Arnold: What's the best law any future President is likely to nullify due to Obama's precedent?  I just don't see this slippery slope leading anywhere we should fear to slide.
I should point out that immigration laws already are very weakly enforced. In fact, when I drew up a list of legamorons (laws which, if they were rigorously enforced, would cause extreme disorder), immigration laws were number one on my list.
Hardly.  The U.S. forcibly exiles over a million illegal immigrants almost every year; as I've explained before, the legal distinction between "removal" and "voluntary returns" is minor.  The fact that coyotes in Mexico - our closest Third World neighbor - charge about two years' salary shows that U.S. enforcement is very draconian indeed.  As economists, moreover, we shouldn't forget that immigrants drastically change their behavior (e.g. never driving) to reduce their risk of deportation.  If you know anyone who lives with this fear - and I do - it's horrible.
Perhaps you can think of the President's move as analogous to civil disobedience--it is a way of calling attention to a law you don't like. However, I think that civil disobedience is much more defensible for an ordinary citizen than it is for the President of the United States. Ordinary citizens need ways to publicize their opposition to laws. The President can publicize his opposition just by giving a speech.
"Calling attention" to unjust laws is one of the weakest rationales for civil disobedience.  The main point of disobeying an unjust law is to reduce its number of victims by one.
In a better world, I would rather have seen the President give a ringing speech in favor of changing a law than announce an intent not to enforce it.
Obama did give a speech.  Not a bad one, I might add.  But if Obama only gave a speech, nothing would have changed.  Now it seems hundreds of thousands, if not millions, will win their basic human right to accept a job offer from a willing employer.  And even if Romney wins, it sounds like he'll treat his rival's semi-amnesty as a fait accompli.

"Too good to be true"?  Maybe.  "You'll be sorry"?  Highly unlikely.



COMMENTS (35 to date)
mick writes:

Fear not, as soon as there is a Republican president "serious" people everywhere will remember it is obviously unconstitutional and inappropriate.

DK writes:

I see no other politically possible way this could happen. Waiting for the median voter to come to his senses is like waiting for Godot.

Funny how the self-proclaimed libertarians routinely come out as the most ardent democracy haters. Sometimes I get the feeling that were it up to them, the whole world would be one Khmer Rouge paradise. After all, why pay attention to what unwashed masses want when WE just know what needs to be done, when and how?

John Jenkins writes:

President Obama also once said that his administration would not be prosecuting people in states that had authorized medical marijuana and who had prescriptions for it, which the administration continues to do apace. So, don't hold your breath on his actually following through here.

Ghengis Khak writes:

Bryan says:
I say the laws on the books are so overwhelmingly wrong that even random Presidential nullification would be a huge expected improvement.

You make it sound like random is the worst policy a president could use when selecting laws for nullification -- plainly it is not. A much worse and far more likely nullification strategy would be targeted toward rewarding friends and punishing enemies.

James A. Donald writes:

If illegal immigrants could not vote, and their children could not vote, then open borders would correct a very great injustice.

Since in practice they can and do vote, and their children can legally vote, open borders are likely to cause a very great injustice.

By and large, illegal immigrants are forbidden from working, but entitled to welfare, a position that Obama is entirely happy to continue.

I would favor open borders if non citizens were free to work, but not free to vote or collect welfare. We have, however, pretty much the reverse situation.

John David Galt writes:

President Obama has tested the limits of his unilateral powers in some unprecedented ways (as well as leaving in place some unilateral decrees of Bush II he had promised to end, including those related to Guantanamo and torture).

But there are many things a President can legitimately do unilaterally, without even an emergency to justify them. One is to grant pardons (something I expected him to do a lot more of than he has). Others have to do with foreign policy. For instance, if Gary Johnson somehow gets elected President, he can end the war on drugs simply by notifying the UN that the US is withdrawing from the Single Convention. I don't believe anyone else has to approve that.

Matt H writes:

Brain,

You might be the definition of a clever-silly. Someone so smart they can convince themselves of anything.

What if Obama really was a socialist, like so many republicans believed and the laws he refused to enforce were laws protecting private property. This is what is going on in Venezuela, A group of red shirt-wearing Chavista thugs show up at a farm and seize the farm, under the pretext that the farm is “idle land” and that the law allows them to take it over for “food production.” Of course the actual government doesn't stop this kind of thing because they don't believe in private property. Rich people don't deserve their land, and a collective farm would be much more efficient anyway.

Don't like Venezuela, how about Zimbabwe, was killing white farmers legal, no, but the government doesn't really believe it needs to enforce that law. Now the country is in a shambles.

Obama should be impeached for his refusal to enforce laws that our elected representatives passed. If he believes those laws are unjust he should be willing to pay this price.

But Obama doesn't care about these laws one way or the other, if he believed so strongly he could have done this his first day in office. He is just rewarding a constituency for political purposes, and he is doing it by fiat. This is not OK, its really really bad.

If there is one thing I feel like we have learned in the last few years is that a free market alone isn't enough for prosperity. It requires all sorts of cultural factors that allow free markets to exist. Rule of law is a big part of that.

Brian, you really need to step back from the ledge and learn some humility. You have no concern for your fellow citizens, no sense that being an American is a privilege, and that what we have here is fragile and shouldn't be subject to the kind of massive social engineering you wish to impose. You, and your open borders crusade are the worse kind of central planning, because you don't even recognize that is what you are doing.

Peter H writes:

This is not a question of civil disobedience. What Obama is doing is entirely lawful. The President is explicitly given discretion over the enforcement of immigration laws.

Further, the Constitution itself grants the President the power to grant reprieves and pardons, so if we're looking at the intent of the founders, the power to grant clemency for violations of law where punishment does not advance justice is clearly a power of the President.

C writes:

I respect Caplan for his intellectual honesty and unorthodox thinking in regards to education but somehow, when it comes to illegal immigration, he forgets rational thought and starts singing the groupthink of Beltway elites (of all parties).

Several questions for B. Caplan in regards to illegal immigration that hopefully he will have the courage to answer:

1. Have you examined the historical record of massive waves of immigration? Its not encouraging, ranging for complete societal destruction (Dorians into Greece, Germanic peoples into the Roman Empire, etc.), to rebellion and war (Anglo settlers into Texas, Germans into the Slavic lands, etc.) to 'mere' genocide and displacement (see history of European settlement of N. America and Australia). Given that successful examples of free movements of people without downstream violence and conflict are so rare, where does your certainty that this is a good thing come from?

2. The record of Mexican immigration into the US is not good. The belief The border states which have seen generations of legal and illegal immigration and there is no record of dynamism (especially intellectual or economic) similar to that seen with European waves in the 19th or early 20th centuries nor even the Asian migrations of the '60s and 70s. This would seem to provide empirical confirmation of what IQ would predict and even if that is completely wrong, it remains the burden of Bryan and his ilk to show just why this intellectual accomplishment wave has not occurred when groups that were similarly poor (Vietnamese, Indians) seemed to have done so much better.

C writes:

(continued from above)

3. I understand Bryan believes in open borders and that it will benefit the migrants but what is his stance regarding government's obligation to its own citizens? If there is a welfare state, then this migration wave has distributional consequences while for low-income natives, increased competition for housing and jobs materially alters the standard of living (even if one grants that low skill immigration benefits elites and may even be net positive). Standard political theory endorses the idea that a government's responsibility is to its citizens. There seems to be no acknowledgement that Bryan's position is inherently an unstable equilibrium (a non-responsive government is by definition illegitimate and likely will lose support rapidly) and that he is advocating the end of the nation-state.

4. I am an immigrant (a legal one) who lives in a border state. I don't come from Mexico though and so had to go through the entire process like everyone else from a country that does not border US. Why should an uneducated Mexican tenant farmer have more right to settle in the US than an educated Chinese, Indian or Nigerian immigrant? Or even a poor Vietnamese, Zambian or Greek immigrant? Essentially, Bryan is advocating preferential immigration policies (towards illegal Mexicans) that make no rational sense and seem to ensure cheap gardening and nanny services but little else. Every other liberal, prosperous country including Canada, Australia, the UK, France, etc. seem to have stricter, fairer immigration policies. Where does Bryan stand on this fundamental unfairness to every other person who would love to immigrate to the US?

Ghost of Christmas Past writes:

Wow. As a minarchist one of the few things I want the government to do is control immigration. If Obama used his "discretion" to unburden us of ADA pool-lift rules, or racial hiring quotas, or asset-forfeiture robbery by the DEA, I would sure be pleased. And he could do all those things and thousands of others within the law. But you! You want the President to neglect one of the few proper duties of the Federal government; one of the few things it can do to actually help citizens prosper-- protecting them and their children from hordes of invaders. I shake my head in amazement.

ajb writes:

I am always amazed at the depths of Caplan's fanaticism. His attitude here is entirely Leninist. Someone who doesn't share his views on property rights could also make the same arguments about non-enforcement of laws on property, zoning, theft, foreign policy, regulation, what-have-you. Indeed, in third-world countries, many local politicos selectively permit squatting, robbery, or other rights violations while supposedly "enforcing" the law in order to disadvantage their opponents. How is this different from Caplan's willingness to trample on the will of most Americans and the rights to control of our borders that derives from law and custom? Of course, many Leninists do talk and act this way. But Caplan is doubly sad for his claim to holding the high moral ground and for his ostensible devotion to property rights -- at least as he chooses to define them. Frankly, I don't know why a non-libertarian should take his views of rights seriously since it's clear he only wants to enforce rights he believes in. Which, like it or not, is a version of might makes right.

Greg writes:
Funny how the self-proclaimed libertarians routinely come out as the most ardent democracy haters. Sometimes I get the feeling that were it up to them, the whole world would be one Khmer Rouge paradise. After all, why pay attention to what unwashed masses want when WE just know what needs to be done, when and how?

not everything should be up for a vote. we should not be able to vote on whether we should steal people's wealth for example. we should not be able to vote on whether someone can voluntarily choose to employ someone from outside of the country for the wage he can bargain for.

caplan and the hated libertarians are saying that we should be free as individuals to do what we wish and individuals should not be at the mercy of the angry mob.

democracy does not equal freedom. putting up individuals' choices for a public vote is the oppose of freedom.

Hugh writes:

What an awful post!

Caplan seems to have jumped from libertarian to monarchist in fewer than 160 characters.

Peter writes:

Prof Caplan,

In this case, the end does not justify the means. It has been pointed out above and in the media, http://online.wsj.com/article/SB10001424052702303822204577468872677354992.html?mod=WSJ_Opinion_LEADTop that this is an action by the president to gain more votes rather than something to correct a great societal wrong.

My question is: Are the hundreds of thousands of people who will soon have work permits going to suddenly start following labor laws? Many illegal immigrants work for cash. Many illegal immigrants and their employers evade the taxes, insurance, and rules that businesses and workers with integrity respect.

I am not convinced that the new semi-amnesty will have a positive contribution to our society. Rather, I wager it will embolden rule breakers to continue to live as they have been.

Hugh writes:

Just as the Pope sold indulgences, maybe the President could earn some cash too:

-don't want to pay your taxes? Call me!

- just killed someone? Have your lawyer call me....where there's cash there's hope.

MikeDC writes:

Good grief. Again.

I remember, once, a professor who taught me about systematically biased beliefs about economics. I wonder what he would say to the idea of a presidential dictatorship randomly changing laws.

And by the way, we aren't talking about nullification, pardon, or selective enforcement. We're talking about plainly making out a whole new set of laws and standards for certain classes of people.

Which, ya know, doesn't seem very libertarian to me, allowing the president to do whatever the hell he wants doesn't.

David Hugh-Jones writes:

Yup, this is a bad argument, and Robert Bolt can tell us why:


William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Noah Yetter writes:

The main problem is what happens when a future executive decides to start enforcing it again. See here http://www.reddit.com/r/Libertarian/comments/uxzww/thanks_usda_i_appreciate_the_useless_regulation/

Also,
@DK the US Constitution is a fundamentally anti-democratic document. If democracy was safe, why would we need to limit government? What if "the people" WANT to pass laws restricting the freedom of speech?

What libertarians want is for huge swaths of our lives to be carved out as safe zones, free from any possibility of government interference, whether "the people" want it or not. Some of those areas are (nominally) already protected by the Constitution, if imperfectly, such as speech, self-defense, protection from arbitrary police action, etc. Unfortunately many others are not, such as immigration and free trade.

Kevin writes:

While I agree that this is (probably) a substantially positive policy change...

I say the laws on the books are so overwhelmingly wrong that even random Presidential nullification would be a huge expected improvement.

My concern isn't that future nullifications will be random, because I agree that would be an improvement on not, but that they will be another means of pandering to the median voter without even the trappings of normal institutional restraint.

Seth writes:

"I just don't see this slippery slope leading anywhere we should fear to slide." -BC

I call this government power bias. That is, we typically do not foresee a slippery slope when a government action is something we happen to agree with. I'm surprised BC exhibited it.

Military action w/o congressional declaration of war. A hit list w/o due process. Nullifying of creditors' senior claims on assets. The Obamacare individual mandate. A recess appointment the Consumer Financial Protection Bureau (after which I believe the President was one declaring that the Senate was in recess).

I'd say we're well down the slippery slope, this isn't the beginning of it. You seem to be experiencing boiled frog syndrome.

Also, would you make a constitutionality argument against any Fed gov't that you find objectionable? If so, how would you reconcile to this post to avoid being a hypocrite?

DK writes:

Noah Yetter: What if "the people" WANT to pass laws restricting the freedom of speech?

Then they should be free to elect bodies to do just that. Government exist for 'the people', not the other way around.

And yes, I am aware of the problem and limitations of democracies. Which does not negate the fact that sentence I quoted from Bryan's post is 100% Stalinist in spirit.

MattW writes:

I second what Ghengis Khak wrote. This follows closely with what Bryan wrote in the myth of the rational voter; voters' preferences are biased in a systematic way, and thus politicians' platforms are biased in the same way, and so the laws that are ignored will not be random laws. I don't know what they will be, but I don't think it would turn out well.

I favor Arnold's view here.

Ghost of Christmas Past writes:

Whether you approve of the action or not, exile is not the right term for sending illegal aliens home (forcibly or otherwise). Try "deport" or "expel" next time. If your moral argument is so strong, it will persuade by reason without need for confusion of terms.

Gabriel writes:

"I'd say we're well down the slippery slope, this isn't the beginning of it. You seem to be experiencing boiled frog syndrome."

I'd say a lot of the "separations of powers" stuff that people parrot about regarding why it is that the state can and can't do is either:

1) A lie by a public official trying to cover their ass (ie Eric Holder saying Obama can't legalize marijuana when the DEA and the FDA are the ones who categorise drugs and they're both executive agencies)

2) Signaling of "law and order" worries. The government (especially exec branch) can actually do whatever it wants and justify it with legalese afterwards as long as there isn't +75% opposition in polls. Saying "we need to worry about process in government" just signals that you're either a "serious libertarian" or a liberal who wants to justify away that the state does bad things. The state is going to do whatever it so structures itself to want, even if we try to care about process.

Mr. Alazar writes:

"My question for Arnold: What's the best law any future President is likely to nullify due to Obama's precedent?"

I am not Arnold, but my answer would be: The First Amendment to the Constitution. Or maybe Article IV.

Because Articles I-III and V don't have to wait for a future occasion.

Douglass Holmes writes:

I have to agree with Brian here. The existing laws and their enforcement are so bad that it seems appropriate for the administration to choose not to enforce some of them. Such a stance does not sit well with some conservatives, but when it comes to border control, many conservatives are unrealistic.

However, I don't recall Senator Obama giving much support to George W. Bush's attempt at immigration reform. I don't think he's interested in addressing the real problem, he just knows how to use this issue to his advantage.

MK writes:

James K. Donald says:

If illegal immigrants could not vote, and their children could not vote, then open borders would correct a very great injustice.

Why? What do you think immigrants make worse decisions when they vote than do native-born citizens? I agree that I probably don't like how they vote, but I dislike how my native-born neighbors vote just as much.

By and large, illegal immigrants are forbidden from working, but entitled to welfare, a position that Obama is entirely happy to continue.
Yes, they are forbidden to work but they are also forbidden from getting any welfare, save emergency medical care. You seem unfamiliar with the eligibility requirements for our welfare system.
I would favor open borders if non citizens were free to work, but not free to vote or collect welfare. We have, however, pretty much the reverse situation.
Since non-citizens can't vote and since illegal immigrants can't get welfare (and many legal non-citizens are restricted from some welfare programs), it seems you need to be an advocate of reducing restrictions on immigrant work.

What always amazes me with those who oppose immigration is that they justify their opposition along the lines of Mr. Donald and then conclude that means we need to restrict immigration. In reality, if you object to immigrants collecting welfare, the proper policy action is to restrict the ability of immigrants to get welfare. If you object to them being able to vote, then support immigration but not naturalization.

Johnson85 writes:
Since non-citizens can't vote and since illegal immigrants can't get welfare (and many legal non-citizens are restricted from some welfare programs), it seems you need to be an advocate of reducing restrictions on immigrant work.

I'd challenge you on the non-citizens not voting thing. It's laughably easy to commit voter fraud. Not sure how easy it is to get on welfare as a non-citizen or illegal immigrant, but I know for example that there is serious abuse of SS Disability, so it's not like it's unreasonable to be concerned that current welfare programs will be provided to people that aren't eligible.

That said, if people on the left really cared about increasing immigration, they should stop spending so much effort giving non-leftists a reason to worry about immigration. Stop promoting gov't as a means to take from one group to give to another, work to provide protection of economic rights, and stop fighting voter ID laws, and there wouldn't be a moral ground to stand on to fight immigration.

Allowing increased immigration is almost certainly still the morally right thing to do as things stand, but it's hard to blame people for worrying about who is allowed to be in the country when half the people already here think it's morally legitimate to use the threat of force to do whatever they want, as long as they can get enough politicians to sign off on it.

MK writes:
Allowing increased immigration is almost certainly still the morally right thing to do as things stand, but it's hard to blame people for worrying about who is allowed to be in the country when half the people already here think it's morally legitimate to use the threat of force to do whatever they want, as long as they can get enough politicians to sign off on it.

I find it difficult to think that anyone is legitimately concerned about government using the threat of force to do whatever voters want if that person wants to uses the threat of force to keep someone from peaceably entering this country. You can't say that people oppose immigration because they think it will lead to a less libertarian society. Opposing immigration means you don't care about libertarian values.

To your other points, I agree that liberals like Obama would undercut the opposition to immigration if they would support voter ID laws and things like that. However, conservatives who oppose immigration because they think immigrants will get welfare or vote in elections are either misguided or using those issues as a pretext for some other anti-immigration sentiment.

If you are concerned about welfare fraud, support strengthening the eligibility criteria for welfare and the enforcement of that criteria. I don't know why it's such an issue that illegal immigrants get welfare; I'm just as annoyed by my citizen cousin who defrauds Medicaid as I am by Juan from Sinaloa. It's certainly reasonable to be concerned that people who aren't eligible will game the system; it's not reasonable to use this concern as a reason to restrict immigration.

Welfare fraud and voter fraud are separate issues from immigration. You don't infringe on someone's natural rights, hurt the economy, and interfere in the free market -- all things which restricting immigration does -- to combat welfare fraud or voter fraud. There are far less damaging methods to do this.

IVV writes:

"My question for Arnold: What's the best law any future President is likely to nullify due to Obama's precedent? I just don't see this slippery slope leading anywhere we should fear to slide."

Here's my answer:

"Due to budget constraints, we are disbanding the SEC. The markets have seen the effects of unfettered bank crises. We are better off enforcing the laws in other ways, and stop these regulatory brakes on economic growth. The markets know what will happen if they go too far; they will police themselves better than we can.

(I would like to thank the following political donors...)"

Peter writes:

Legality aside the thing that is supposed to keep this in check is Congressional oversight of both the President and Agency Heads. If Congress doesn't like the Presidents EO they can replace him and if they feel the Agency Head knowingly ignored them (regardless of what the EO directed them to do) they can simply defund them (USCIS) next year. Committee members have long memories and you ignore them at your own peril as a bureaucrat. The problem here isn't the president, its Congresses failure to co-govern; after all if USCIS isn’t providing the services they are required to provide by Congressional statute authorization then no need to appropriate funds for them either given they aren’t performing.

Silas Barta writes:

Ghengis_Khak beat me too it. Random enforcement is not the worst case, nor is it nearly as likely as the worst case. As Ghengis_Khak says, the worst case is that the president (and future presidents) will selectively use it ways that (increasingly narrowly) benefit their friends and hurt their enemies.

Moreover, I take issue with this:

"Calling attention" to unjust laws is one of the weakest rationales for civil disobedience. The main point of disobeying an unjust law is to reduce its number of victims by one.

That is an extremely short-sighted view of political change. Real change only happens through widespread shift in opinion. If you simply increase evasion of the law while public opinion remains the same, you just get more draconian laws against the practice and restriction of related liberties.

Nate writes:

Bryan,

While I would disagree with you that immigration restrictions are a "crime against humanity" as I think there are cultural implications to unchecked immigration that we haven't really figured out.

I would disagree strongly that the President's executive order allowing anyone of a certain age that has been here for 6 months to get a work permit is the right way to construct policy especially that it shows a clear disregard for current law, irregardless of whether it's moral or immoral.

We moved away from the law of the King in 1776, and given the current actions via Obamacare waivers, etc, it seems we are moving back in that direction, where the personal views of the executive are definers of law, rather than a constitutional basis which protects the basic liberties of the citizenry from the predations of government. That is what disturbs me, is that by fiat the executive creates his own law.

Peter Schaeffer writes:

"The fact that coyotes in Mexico - our closest Third World neighbor - charge about two years' salary shows that U.S. enforcement is very draconian indeed."

Laugh, laugh.

That's border control, not immigration enforcement. The U.S. has essentially zero enforcement anywhere else.

For example, the U.S. has literally no mechanism for detecting and removing visa overstayers (30-50% of illegals).

Employer sanctions are within rounding error of zero.

Interior enforcement (finding illegals in the U.S. and removing them) is near zero save for Secure Communities. Secure Communities is quite real and shows (by the sheer numbers) that immigrant criminality is vastly higher than was previously believed.

A few states have cracked down on illegals (Arizona, Alabama). Illegals scurried out in each case. The ease with which illegals can be removed (with modest efforts) shows how little is being done so far.

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