In September 2017, the current presidential administration stopped accepting new applicants for the Deferred Action for Childhood Arrivals (DACA) program. DACA is an administrative program that provides temporary protection from deportation for undocumented immigrants who arrived in the United States, enabling them to attend university, get jobs, apply for driver’s licenses, etc. Nearly 800,000 people received this DACA protection. The administration has signaled that they may be open to a legislative fix reinstating these or similar protections for undocumented immigrants who arrived as children, and negotiations over the future of DACA have been ongoing. (For a helpful explainer on the recent political history of DACA, read this article.)
Many opponents of DACA and other proposals that would provide legal status or eventual citizenship to undocumented immigrants argue that such programs and proposals would award illegal behavior. Awarding illegal behavior is wrong because people have an obligation to follow the law, barring legitimate exceptions. If people who knowingly broke the law are awarded with citizenship or freedom from prosecution, then the rule of law is undermined and lawless behavior in general is promoted. As such, the administration was right to end DACA. Though the recipients of DACA may have been too young to be held responsible for violating immigration law, their guardians who brought them over were not.
This raises several ethical questions. Do people have a general moral obligation to follow the law? If so, are there legitimate exceptions to this obligation? If the law is unjust, are we still obligated to follow it? Is an undocumented immigrant obligated to follow the laws of another country or only the laws of his or her home country?
Let me focus on the last question. Social contract theory is a popular approach to justifying the moral obligation to follow the law. Under this theory, political authority’s justification is based on a contract under which people agreed to give up some of their natural freedoms in return for the safety and security of a civilized society governed by law. This contract may be considered historical—that is, it actually happened some time in history—or hypothetical—people would have agreed to such a contract were they to have been in a state of nature and acting rationally. Either way, our obligation to follow the law is like our obligation to honor our promises. In some sense, we agreed to the social contract and the laws that followed from it. To break the law would be to renege on our promise.
No doubt there are numerous problems with the social contract account worth exploring; this Stanford Encyclopedia of Philosophy article on Political Obligation is a good place to start. But let us assume it is roughly correct. What relevance does it have to an immigrant deciding to violate another country’s immigration laws? An undocumented immigrant is not a party to the social contract of another nation, and therefore has made no promise (hypothetical or otherwise) to follow its laws. But wouldn’t they have such an obligation if they truly wanted to join the society as a resident, citizen, etc.? Michael Huemer argues no. According to Huemer, “A valid contract involves an exchange of value, and it cannot include a clause according to which a party to the contract has to exclude themselves from receiving any of the benefits of signing the contract.” If fealty to American law is premised on the notion of consenting to the social contract, then immigrants cannot consent to a contract that would require them to exit American society.
Another possible analogy for illegal immigration is the unwanted house guest. Imagine a stranger shows up to your house and decides to come in and make himself comfortable. Surely, you have the right to demand he leave, and he is obligated to follow your rules. It would be absurd for the unwanted houseguest to claim that he did not consent to the social contract governing your home and, therefore, is under no obligation to obey your rules. Similarly, illegal immigration is a violation of the decisions and rules of the residents of a nation regarding who can come and who can stay. The obligation does not stem from consent; rather, it stems from the pre-existing rights of the residents and citizens of the host nation. An immigrant is morally obligated to respect their rights to decide who can come and who can stay.
That seems reasonable. It is worth pointing out that the above consideration does not give the residents of a host nation an absolute right to deny entry to anyone for any reason. If a person faces likely serious harm or death in their home country, then they have a right to emigrate to safety. Likewise, a person at your door begging for entry to escape a serial killer on the loose deserves to be let in. Furthermore, we wouldn’t hold it against him if he broke into your house against your will to escape the serial killer. These considerations, at least, establish the importance that nations respect the human rights of refugees to enter their countries for reasons of safety.
The unwanted house guest analogy for illegal immigration may also have other problems, as there are notable dissimilarities between the two situations. A person’s private home is quite different from large multi-ethnic democracies like the United States, and people emigrate for all sorts of reasons that have no counterpart in the unwanted house guest hypothetical. Houseguests don’t show up at your house to find decent paying stable jobs, nor do houseguests come to your house because some of their family members are already living there. Of course, economic and familial reasons are often part of the decision to emigrate to the United States.
Suffice it to say, coming up with fair policies surrounding immigration is extremely difficult. Simple solutions are not likely to work for all. This includes basing immigration policy off simple assumptions, such as the view that illegal immigration is always an immoral decision. A nuanced understanding of the relationship between legal obligation and moral obligation will assuredly help us develop more responsive and fair-minded policies concerning who we let into the United States and how we approach those undocumented residents already here.