Owen Fiss's proposal doesn't go far enough. He assumes that a policy founded on creating legal barriers to entry is just. But the long-term goal of immigration policy should be open borders and fairly easy naturalization, with social welfare benefits denied to people from the time they arrive until the time they decide to become citizens. Such a policy is more consistent with the American people's historical aspirations. The United States is a nation founded, as Lincoln said, upon propositions of political theory articulated in the Declaration of Independence. All who accept those propositions should be welcomed as members of the American polity.
Fiss agrees that we can deny a long-term lawfully resident alien membership goods such as the right to vote. But, he suggests, we should not deny her social welfare goods, because such denials create conditions for a permanent caste of second-class residents, subject to exploitation because they cannot rely on the remnants of the welfare state's safety-net programs.
But the long-term lawfully resident alien doesn't risk becoming a pariah by law. US law makes it pretty easy for long-term lawfully resident aliens to become citizens. They don't have membership or social welfare goods because they are, as Annette Baier puts it, "voluntary aliens." Baier argues that some benefits flow from being a voluntary alien. He or she can maintain an ambivalent relation to the United States, with some investment in its culture because of long-term residency, but some distance because he or she isn't a US citizen.
For Baier, sustaining that ambivalence requires that the voluntary alien be denied some things, and she thinks that some social welfare goods might be among them. The voluntariness of voluntary alienage matters in another way. It's hard to see how denying voluntary aliens social welfare goods creates a risk that they would form a permanent caste vulnerable to exploitation. After all, they can leave that status when they want. The mere possibility of their doing so sharply reduces the risk that they would form a subordinated caste.
Illegal entrants aside, the risk that Fiss worries about involves only lawfully present aliens from the time of their arrival until they become eligible for citizenship. And, again, precisely because there is a time limit on the problem, we can't create a caste out of that group either.
(Of course, all this rests on the proposition that it's fairly easy for a lawfully present, long-term resident alien to become a citizen. That's largely true as a matter of law, less so as a matter of practice. But we could improve the practice without worrying about any large questions of principle.)
The real problem, of course, is posed by the alien who arrives in the United States illegally. Here Fiss's proposal has real bite. But its incentive effects, which he notes in passing, are clearly in tension with the proposition, which Fiss accepts, that the United States can restrict entry. In effect, Fiss says to people outside the United States, "We're going to use guns and soldiers to keep you out, and we're going to throw you out if you get here and we find you. But if you manage to get here and as long as we don't find you, you'll get access not only to the general market opportunities available in the United States, but to our social welfare goods too."
In response to concerns about incentives, Fiss says in effect that the only way to discourage unlawful entry is by force--force at the point of entry, and force through deportation. I suspect that Fiss's analysis is driven by Justice Brennan's opinion in Plyler. We know, Brennan said, that we're not going to use enough force to control the borders or deport people who enter unlawfully. And that really does mean there's a risk of creating a pariah caste.
But we can respond in two ways to the problem of our practical unwillingness to keep or throw people out. As Fiss says, we can admit to ourselves that they are going to be here, and keep them from becoming a pariah caste by ensuring that they receive social welfare goods.
Or we could decide that we are wrong in trying to keep them out. Usually people defend restrictive immigration policies on two grounds. The first is pragmatic: there'd be a flood of purely economic immigrants, attracted to the United States only by the huge differences between their economic opportunities at home and here. Frankly, I don't see what's so terrible about that. In equilibrium, everybody's going to be better off. But I'm sure that the transition to an equilibrium would be really disruptive, so I'm willing to accept gradual relaxation of entry restrictions rather than their immediate abolition.
The second ground offered for restrictive policies is more principled. As Fiss puts it, distinguishing between aliens and citizens (which he mistakenly thinks the same as distinguishing between legal and illegal immigrants) is "essential to the very existence of the nation as a community." An open borders policy would eliminate our distinctive national character, whatever that is.
Readers of Boston Review have already been exposed to a substantial debate about nationalism's merits, ("Patriotism and Cosmopolitanism," BR 19 no. 5, October/November 1994) which I don't want to repeat here. But it's worth pointing out that we can accept the fundamental idea of nationalism while proposing an open borders policy too. It all depends on what the nation's character is. There's a strong tradition in the United States that holds that we are a nation committed to a set of universal values accessible to reason (that's my translation of the opening of the Declaration of Independence). That's what we ask about when people become naturalized citizens. And it's a pretty attractive vision of national character.
In short, what's best about the United States would be preserved by a policy of open borders and naturalization available to anyone who agreed with the fundamental principles that animate our polity. The second branch is already in place. It's time to think seriously about the first.