The Rights of Immigrants: An Optimal Contract Framework

Adam B. Cox & Eric A. Posner

It is bedrock policy that the government can treat citizens and noncitizens differently. Virtually no one believes that noncitizens should have the right to vote or to run for office. Many noncitizens—including tourists, business people, and the spouses of certain visa holders—do not even have the right to work or to change jobs. All noncitizens face the risk of deportation if they commit certain crimes; citizens, by contrast, can never be exiled. The U.S. Supreme Court has recognized that the constitutional rights of noncitizens are limited. Like the United States, most other countries draw a sharp line between citizens and noncitizens and recognize that citizens have more rights than noncitizens do.

But if citizens and noncitizens may be treated differently, how differently may they be treated? Most scholars answer this normative question on the basis of doctrine or political theory. Doctrinal accounts attempt to derive noncitizens’ rights from constitutional and legal traditions. Political theories derive noncitizens’ rights from various theoretical conceptions of democracy and citizenship.

Largely overlooked, however, are equally important descriptive questions: Why do governments, such as the U.S. government, grant any rights to noncitizens at all? Why have the rights of noncitizens improved over the years? And why do they still fall short of the rights enjoyed by citizens? If we assume that a state’s policy toward noncitizens reflects that state’s own interests, what policies would we predict states to have, and how do we explain variations across states and across time?

The Structure of Migrants’ Rights

Migrants’ rights vary along two dimensions. First, they differ in their scope. In the United States, migrants are classified in many different ways, and each class enjoys a different bundle of rights. People who enter the country illegally have certain basic rights—to life, to property, to minimal process—but little more. People who enter legally have more generous rights, but their rights are still more limited than those of citizens. For example, tourists and the spouses of certain migrants have the basic rights to life, property, and criminal and civil process, but they do not have the right to work for pay or to remain in the country beyond the period of their visas. Migrants with work visas have the right to work in certain positions but often no right to change jobs.

Lawful permanent residents have the right to work as well as the other rights described above, but they do not enjoy the right to vote. And whereas citizens cannot be “removed” (exiled), lawful permanent residents and other migrants can be removed (deported) for committing certain crimes, posing a security threat, and so forth. Lawful permanent residents are granted an additional important right: the right to become citizens after they have resided in this country for five years, passed a citizenship exam, and satisfied certain other conditions. Some migrants, therefore, but not others, are granted the right to acquire full citizenship rights through naturalization.

Migrants’ rights also vary along a second dimension: their “strength,” or, more precisely, the difficulty or ease with which the government can change them. At one extreme, rights can be administrative: The executive branch has the sole discretion to determine the rights of migrants and can change them at any time. Rights can also be statutory: Congress determines and changes them. At the other extreme, rights can be constitutional, in which case they may be changed only by amendment or through judicial interpretation of the Constitution. Migrants enjoy all three types of rights. For example, the Constitution sets some basic minima for process rights, which statutes and administrative regulations have elaborated on and extended.

Our full-length Article investigates variations in both the content and strength of migrant rights. It also analyzes one type of right, the right to vote, that cuts across these two categories. Voting rights (as well as other rights of political participation) are important citizenship rights. The holder of voting rights has the power to affect political outcomes by influencing the selection of public officials. In one sense, voting rights are an aspect of the scope of a migrant’s rights: Migrants who can vote have rights that other migrants lack. In another sense, voting rights also affect the strength of a migrant’s rights, including the strength of the voting right itself. Although in theory Congress could eliminate a migrant’s voting right by repealing the statute that created it, doing so would be more difficult than repealing other types of migrant rights because migrants would likely vote against politicians who appeared inclined to repeal their voting rights.

In the United States, migrants rarely gain voting rights upon arrival, and when they do, they are only at the municipal level and are limited. However, in the past, migrants were granted more substantial voting rights at the state level, as we will discuss. Even today, voting rights remain an important aspect of the incentive system used to lure migrants to the United States: Migrants are promised that if they qualify for citizenship and naturalize, they will have the right to vote. We can thus think of contingent, deferred voting rights as an aspect of the bundle of migrant rights.

An Optimal Contract Framework for Migrants’ Rights

To explain the content and strength of migrant rights, we borrow the optimal contract framework developed by economists to analyze contractual behavior. Although migrants do not enter into actual contracts with the U.S. government, their relationship with the U.S. government is analogous to a contractual relationship—both sides gain from an implicit deal. The migrant enters the United States, invests in learning English and aspects of American culture, and obtains a return on this investment in the form of higher wages, a share of public goods, and other benefits. The U.S. government—which we use as a stand-in for native citizens—gains from its contracts with migrants in diverse ways: Increased tax revenues from immigrant workers help finance public goods, immigrant labor reduces average labor costs, and the immigrants contribute to cultural and social life.

In thinking about these issues, most people focus on the question of how the government should select among migrants. The world presents a large pool of potential immigrants, and states have to figure out how to separate those immigrants it considers desirable from those it does not. This debate tends to focus on the desirability of certain characteristics such as labor skills and familial relationships with American citizens. But there is another problem of equal importance: how the “migration contract” between the migrant and the U.S. government should be designed once a particular migrant is selected. The main problem for the government is that a migrant who is highly desirable at the time of migration might become undesirable at a later time—for example, if increased unemployment during a recession makes immigrant workers less helpful to the economy. All else equal, the government would like to retain the option to remove any migrant any time events change such that the benefits from the migrant’s presence no longer exceed the costs.

However, the problem with such flexibility is that a migrant will not enter a country, or will enter but decline to sink roots in that country, if she knows that she can be removed at any time. Countries often do best when their immigrants make what we will call “country-specific investments”—like learning the dominant language and developing social networks—but a typically risk-averse migrant will not make such investments if she can be easily removed. Moreover, migrants may worry that the government will wield its removal power opportunistically, trumping up security threats or exaggerating financial downturns in order to justify deportation.

Since governments want migrants to make country-specific investments, it is in their interest to guarantee a migrant’s right to remain even if bad events occur—at least up to a point. It will therefore sometimes be in a nation’s interest to tie its own hands so that it cannot use its deportation power opportunistically. The optimal migration contract balances the government’s interest in flexibility and the migrant’s interest in tying the government’s hands. It can do so in two ways: (1) by granting migrants more or less generous rights, and (2) by making it harder or easier for the government to change those rights.

Different Rights for Different Migrants

Our approach helps expand the possibilities for legal design by showing why different packages of rights might be conferred on different groups of migrants. Much existing scholarship suggests that there is a relatively static, hierarchical relationship among various migrants’ rights. On these accounts, rights increase in lock-step with increasing “membership” in the Receiving State. Rights also tend to be arranged hierarchically, with rights like political participation almost always associated with higher levels of membership than rights like occupational freedom. Our account abandons this idea of a lexical relationship among various migrants’ rights.

We also abandon the assumption common in the literature that all migrants should be accorded the same rights. Migrants come with various goals: Some hope to come and work in the Receiving State for a short time, others hope to remain for a long time but expect eventually to return home, and others intend to remain in the Receiving State permanently. Each of these groups of migrants will value rights differently: For some, the right to remain for a guaranteed period of time will be far more important than occupational freedom, while others will have the opposite preferences. As a result, our approach makes it possible to see why we should expect variations among migration contracts—variations that are hard to evaluate within the literature’s existing frameworks.

Our full-length Article builds on the economic approach to immigration law that we developed in an earlier article.1 In this approach, the relationship between the Receiving State and the migrant is treated as though it were a contractual relationship, which allows one to use ideas from the optimal contract literature in economics. As in all contractual relationships, the two parties have partially overlapping interests. States gain by allowing migrants to enter, and migrants gain by entering states. But each side of the transaction does better by retaining flexibility unavailable to the other. The contracting problem is to choose “terms”—that is, immigration laws—that maximize the joint benefit.

The Precommitment Problem and the Optimal Migrant Contract

A central theme of our full-length Article is that the optimal migration contract between migrant and government—that is, the package of rights that the migrant receives—is shaped by a central precommitment problem: Governments seek to attract migrants with desirable skills and characteristics, but governments also want to maintain flexibility so that the migrants can be expelled or otherwise regulated if circumstances change. However, if governments maintain flexibility, migrants will be reluctant to enter and invest in their relationship with the Receiving State. The optimal migration contract depends on (and hence changes with) a host of exogenous variables. Rights will be weaker, for example, when governments expect that the risk of future adverse events is high. They will be stronger when governments gain a net benefit as migrants make country-specific investments.

Our full-length Article provides a more comprehensive treatment of these exogenous variables and the ways in which they affect the optimal contract between the migrant and the Receiving State. With an understanding of the relationship between these variables, one can explain some of the variation in the rights granted to migrants.



Copyright © 2010 New York University Law Review.

Adam B. Cox is a Professor of Law at the University of Chicago Law School.
Eric A. Posner is the Kirkland and Ellis Professor of Law at the University of Chicago Law School

This Legal Workshop Editorial is based on the following Law Review Article: Adam B. Cox & Eric A. Posner, The Rights of Migrants: An Optimal Contract Framework, 84 N.Y.U. L. REV. 1403 (2009).

  1. Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809 (2007).

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