The Right to be "Here"
The moral and ethical framework supporting restrictive immigration laws is extremely weak; that's probably why immigration opponents don't like to talk about it.
I’ve always spent way too much time arguing with people online. It’s definitely one of my tragic character flaws. I’m well aware that it is largely a waste of time; the problem is, the prospect of changing even one mind is a bit of a siren song for me. It’s a little like that meme image. “Someone is wrong on the internet.” Arguing online has always been pointless. This is especially true in 2025 now that the internet is dead and every post online is written by a bot.
However, as I have gotten older, arguing online has become less about the people (or bots, or sock puppet accounts) I’m arguing with, and more about the people who might read it and be tempted to agree with the people who are wrong on the internet. This problem became especially acute after I became a lawyer. As these perceptions turn into votes that affect my clients, I feel some duty to actually stand against the tide of boulders of Sisyphus that come rolling back down the hill into my internet comment sections. So, now days I spend a lot of time in the evenings after my family goes to bed arguing on /r/immigration and /r/uscis.
Ironically enough, the 2005 film “Thank You for Smoking” captures a large part of how I feel about this. So if you want, you can watch Aaron Eckhart explain this from the perspective of a fictional lobbyist for a tobacco company. At any rate, maybe it’s moral flexibility, maybe it is ego, but either way it’s pretty pathological. Never meet your heroes, kids!
“I’m a baaaaaad guy. Duh.”
(IYK,YK.)
One of the things that I noticed early on in my job is that people have some pretty polarized views about immigration. For better or worse, people say some pretty nasty things about immigration attorneys online. Like any thoughtful person, I thought through a lot of these comments on the road to finding meaning in the work I do. If you don’t think “maybe I am the bad guy” at least occasionally in life, you aren’t taking enough risks. For me personally, I don’t lie, I always counsel my clients to always tell the truth, and I don’t like to charge for my services. It was hard for me to view myself as the bad guy in my own ethics system. So, early on, I spent a lot of time when I first started this job thinking through the ways I might be the bad guy. Eventually I dug deep enough to consider that I suppose I might “help” someone into the country who becomes a criminal who then hurts someone (a popular argument online), or that an employer then exploits. I think these are lazy arguments, but fair enough, there is always room to argue that I am the bad guy. Hey, if you don’t think “maybe I am the bad guy” at least occasionally in life, you aren’t taking enough risks in life.
What I noticed is that the arguments against immigration in 2025 were damn near identical to those used against every wave of immigrants in the US since we started restricting Chinese immigrants in the late 19th century. Tell me if you’ve heard these before: “They have no morals, they’re criminals, their cultures are backward, they’ll take our jobs, they’ll refuse to integrate, they’ll ruin our culture.” Immediately, this revealed to me that there is a deep problem with a lot of anti-immigrant rhetoric. For one, if you have to resort to arguments that old, you must not have a lot of convincing data to back your perspective up. At the very least, there are plenty of ways to argue against it.
However, most of the arguments against immigration are really about the legal structure we’ve built up around immigrating. Sure, it might be illegal to cross without inspection, but is it wrong? Is it right for me to want to live here and not let anyone else? Those are the questions I really ultimately wanted to get to the bottom of. I don’t really care about legality, and I don’t really care about economic or cultural arguments. There are plenty of people who can wax on poetically about those issues. As an armchair philosopher, what I care about is the normative questions, that is, the questions about how we should live our lives and construct our ideal societies.
Property Law Primer - Where Immigration Law really comes from
What is morality? Broadly speaking, morality deals with the principles that govern right and wrong, good and bad/evil, and how people should act in the world. Regarding immigration, I’m concerned with two questions primarily: (1) Is it moral to restrict immigration? and (2) Is it immoral to circumvent restrictions on immigration through legal or illegal means?
Regarding these questions together, what I’m really trying to get at is do people have a right to live anywhere, and do they have a right to stake a claim and prevent others from doing the same thing. These topics are, understandably, huge and too much for one life time, let alone one substack post. However, what I was able to settle on was trying to understand why people who live “here” (wherever here is) have more of a right to live there than someone else.
Part of the reason I got interested in this question is because I was already aware from law school how tenuous common law property rights and law are. Property law describes the laws regarding how people come to “own” objects, what that ownership means, and the relationships between people and the things that they claim to own, and between each other.
Ultimately, the most important principle in property law is “First in time, first in right.” This means the person who was first to claim ownership rights over a piece of property, generally has a “higher and better” claim to that item than someone who came later. It’s the reason that “possession is 9/10ths of the law” or “finders keepers” aren’t real legal principles, but they aren’t entirely wrong either.
For most uses, first in time, first in right can clear up any issues. Example, I buy a house, I sell it to a friend, and then I sell it again to my aunt. The law will usually assume that my friend owns the house, not my aunt. There are always exceptions, but this is a convenient way to think about property.
Restated, if I own something, then you claim ownership later, the law will assume my valid interest in the property is better than yours because “I had it first!” That’s right, the foundation of western property law is best articulated by a small child who is learning how to share. This is what I learned the first day of property law class. Ironically enough, it was also the moment I learned that the law was bullshit. Why? Because the day I learned that principle we also skipped the first chapter in the textbook entitled “Acquisition by Conquest” 1. I digress.
A fortress over a sinkhole: Immigration Law and Morality
What I want you to take from this is that the core legal principle in American law suggests that the person who ends up some place first has a higher and better right to stay there and prevent other people from living there. This is baked into our culture at the deepest levels, and it is all over the immigration debate. When someone says “this is our country” or “America is for Americans” what they’re really trying to say is that “we were here first.” (Note: See footnote 1, above, which is conveniently left out of ever discussion on this topic.)
The huge assumption baked into this idea is that people who end up somewhere first have the moral and normative rights to stay there and exclude others who come later. Sure, you can argue the law, or the economic benefits, or the crime angle, or national sovereignty or whatever you want, but ultimately what you’re really suggesting is that you were here first and immigrants weren’t. If the initial assumption is not true, then the entire legal system, and a lot of the justifications against immigration will immediately fall apart. This is why I describe our complex immigration system as a fortress built over a sinkhole, because ultimately all of these arguments are propped up on a very weak assumption.
Why is this assumption weak? Because no one chooses where they are born. As far as we know, no one gets in line, chooses where they’re going to pop out of their mother’s womb, and then shows up there. The only reason you are first in your nation of birth is because you were born there. Putting these ideas together, the moral legitimacy of all immigration control, then, is predicated on the accident of birth, or failing that, the strength to kill anyone who tries to invade and take the land of your birth. That’s it. That’s all.
People like to make weak analogies about the border to their home; you lock your door and don’t let anyone in, after all, they like to point out! The problem is that I did, however, give up my hospital nursery bed to the next baby. Hell, I gave my mother’s womb, my real sovereign homeland, to both of my brothers after I was expatriated at birth. I suppose if you’re born in a house, you can prevent ANYONE from ever coming in later? I’m being facetious because this argument is ultimately stupid and an ineffective way to analogize the border.
What exactly is the justification that those who are randomly born in one location have a higher and better right to that location? There’s absolutely NO REASON for that to be the case, absent I suppose a belief in a god that put you there and by golly, he’ll keep you there. Call it the divine right of nationality, I guess.
Ignoring the religious argument, which is pointless to argue against, there is no moral justification that helps fill in this hole. You didn’t work to choose your country of birth; you don’t expend resources to create or maintain it at the time of your birth, and you certainly were not strong enough to take or hold it through conquest. The best you can do is to argue that your parents lived there, so you get to live there, but the inheritance argument still has the same problem, that being, without God making Adam and putting him in a particular place, there was no “first person” who has a higher and better right through any justification that we would normally recognize as giving people a higher or better right to the country of their birth.
This is ultimately where the immigration control arguments all fell apart for me. I don’t believe that God gave me “this land,” and even if he did, I don’t believe that he wants me to exclude people from it at all costs. There’s simply no good reason that I have the right to be here and someone else doesn’t. Every reason ever offered assumes that someone, somewhere, had a higher and better right to the land. The reality is, there is no reason to make that assumption, other than the fact that it comfortably allows us some sense of feeling that we have a right to where we are born. Put another way, sure, this land is “our” land, but only because we say that it is ours.
Steel-manning the Opposition: Social Cohesion Requires Immigration Control
As I said before, I’ve never heard a convincing argument that overcomes the problems of the privilege of accident of birth. I’m not suggesting there is no argument, it is just that every time I’ve heard someone try, they don’t address the core concern, which is the fundamental randomness of birth and the inability to draw any moral conclusions from it.
For example, one of the better arguments in favor of immigration control is the argument that social cohesion, a necessary component of “the good life” for human beings, requires some level of immigration control. In other words, sure, you might be born there, and that might not give you rights above someone not born there, but you are entitled to live in a society that is functional, which requires a requisite level of social cohesion. I think this makes sense; however, the reality is that it doesn’t address the privilege of birth. And if it doesn’t, then its proscribed rules are ultimately arbitrary and capricious even if well meaning.
The best this argument can achieve is accepting that there is some level of inequality that we cannot fix, and to do so would break more things. This is a moral realist argument, but it isn’t necessarily correct, in the most objective sense. I think this is the best we can hope to achieve. Ultimately, this is why I’m not an open-borders guy in actuality, but I’m probably as close as you can get while still accepting that some level of immigration control is necessary.
Conclusion? Where we’re going we don’t need conclusions!
Where the social cohesion argument falls apart for me is determining exactly to what unit of social order does a person fairly claim a right toward? As it stands, people are really bad at conceptualizing a cohesive society after the group grows much more beyond about a hundred people. Are we really entitled to societies that are bigger than that that are socially cohesive? I’m not sure this is the case, especially given that it becomes really hard to force social cohesion between societies. Ultimately, then, our birthright (see what I did there?) is a world of small communities/tribes, that are prone to fight each other for resources. And whoever wins, gets the land, I guess? This still seems intolerable to me, even if it may ring true. I think we can do better. Unfortunately, I wish I knew exactly how we’re supposed to do that.
The other real-world problem I see that makes me suspicious of the social cohesion argument is that most immigration control is itself inherently destabilizing to social cohesion. Look at what is going on right now in America: No one can legitimately argue that grabbing illegal immigrants and deporting them is helping to stabilize society. Kids are skipping school, mothers skipping doctors appointments, and people’s ability to be gainfully employed is being arbitrarily taken in the name of social cohesion. This is some downright Orwellian doublespeak. The cohesion comes from disrupting our communities? Give me a break.
Ultimately, Trump’s policies, even if morally built on the need for social cohesion, are doing a lot of work to absolutely cut away at this social cohesion. I wish someone with some sanity would wrestle control over our immigration policy from the likes of people like Stephen Miller. Elections have consequences, as they say. Hopefully the consequence of strict immigration control isn’t a further erosion of the social fabric of our society. Unfortunately, I fear this may not be the case.
I don’t want to get too much into the weeds of this, but I can’t ignore it in a morality post. The reason law is bullshit is because the bedrock principle of American property law also suggests that we do, in fact, actually live on stolen land, and that we have to immediately hide the truth of that reality to make the property law system we set up actually work. This isn’t some DEI/woke bullshit, it’s our own legal system, which was set up in our favor, calling out our bad behavior. So, if we acknowledge this are we “assaulting western culture” or “supporting our cultural heritage and values?” I don’t know. It’s okay if you win the conquest, I guess?