The question posed in this inaugural issue of Peregrine is deceptively simple and profoundly misleading. What it asks us to do as legal and economic analysts is to make some empirical judgment as to the number and composition the immigration population. On reflection, this asks us the wrong question.
Refer back to Robert Nozick’s underappreciated account of patterning principles in Anarchy State, and Utopia, which cautions us against thinking about the just solution in terms of the anticipated end state. I think that the same cautious approach should be applied to thinking about immigration, only in this context the task is much more difficult, because it becomes necessary for the government to fashion a set of admission requirements.
Immigration rules should not envision in advance some quota on the number of persons who will be allowed in on permanent visas. They should avoid patterning principles. Rather, the rules should set out the test by which individuals should be allowed into the country.
Here is one example. Suppose that it is thought that individuals should be allowed into the United States if they can prove that they can support themselves in the country for a period of say three years. The appropriate rules in question then could ask that individuals seeking immigration gain a certificate of prospective employment from a domestic party. It may well be that the initial permit will be subject to modification if the immigrant loses the job, changes the job, changes marital status or whatever. But for these purposes, the key step is the first one. Once the basic test is established, then let the number of immigrants take care of itself: an equilibrium in which those who can meet the test get in, those who do not, do not get it.
One caveat to this proposal is that this three-year period need not be set into stone. A second caveat to this proposal is that it might not work at all. Neither caveat gets us back to a system of quotas and targets. It could be that the leading indicator for immigration practice should be something other than a promise of employment. But whatever the test, this country is large, and so long as the proposed standards are not perverse, we should let the numbers take care of themselves.
Immigration is a chancy business, and there is some chance this will flounder. But in dealing with this issue, the right question about any system is “compared to what?” And any quota system with the potential for long queues that are not easily shortened does not seem to be a compelling alternative.
