Jonathan Casey, in his opening remarks during a debate with Ryan McMaken on national divorce, criticized national divorce on the grounds that it throws away the open borders compact between the states. This, per his evaluation, would hamper the freedom of travel. He expressed the same sentiment during the National Divorce debate the Soho Forum held last year.
“We have a perfect open borders system” between the U.S. states, claims Jonathan Casey. Most people might tend to agree with Casey’s claim, but is it true?
First, the broad notion of open borders that people can go where they want as they please must be rejected. Such a system neither exists currently nor would it exist in a libertarian society. There will always be legitimate barriers to travel, such as the income of the traveler, the private property of others, the available means of transportation, etc. So, we should clearly reject any system of open borders that includes this supposed “right” to immigrate and be thankful that the U.S. does not currently have such a system.
A second form of open borders is the elimination of legal barriers to travel. This is a much more agreeable policy. In terms of this definition, is Casey right? Is this the system that currently exists between the U.S. states? Not quite.
A legal impediment to travel that the federal government has pushed for is REAL ID.
By May 7th, 2025, travelers will need to present federal papers (real ID) to board a domestic flight. Of course, some kind of government identification, such as a driver's license, is necessary prior to REAL ID, but nothing like a federal document has been required for interstate flight. Additionally, every airline traveler must withstand being harassed by the Transportation Safety Administration (TSA) and put up with federal airline guidelines, such as those implemented during the COVID Era.
All of these increase government impediments to free travel, so this fact alone should make it clear that the US does not have a “perfect open border system” between the states as Casey suggests.
What other political barriers exist to travel?
States are allowed to establish border checkpoints to prevent the importation of prohibited products. For example, California has border checkpoints designed to prevent the entry of commodities potentially infested with invasive species. From the California Department of Food and Agriculture:
Most years, more than 20 million private vehicles and 7 million commercial vehicles were inspected at the BPS. From these vehicles, inspectors rejected over 82,000 lots of plant material (fruits, vegetables, plants, etc.) because they were in violation of California or federal plant quarantine laws.
This hardly sounds like an open border between California and its neighboring states.
Taxes and regulations also make it difficult to freely travel between states. States have a plethora of taxes ranging from income to property. Sales taxes and government-imposed fees for hotels/motels make travel more costly. These are barriers to immigration analytically identical physical border checkpoints in that they discourage the movement from one state to another.
Furthermore, regulations act as a barrier as well. For example, occupational licensing in one state is not always valid in another state. Barbers, for instance, have varying licensing requirements depending on the state and they might have to get a new license if they move their business across state lines.
These taxes, regulations, and countless other legal impediments to immigration between states not listed clearly show that there is not a perfect system of open borders between the states. Removing the federal government from the equation will plainly solve part of the issue, such as the abolition of the TSA, REAL ID requirements, and other flying restrictions. However, Casey and the opponents of national divorce might retort, saying, “Many of these regulations and taxes would still exist, and may even be worse, in the absence of the federal government!”
While it might be true that many of these taxes and regulations would persist under a dissolved US, will interstate competition create an improvement upon the present condition? To answer this, we must look at the incentives faced by the state governments.
The states and the federal government can be viewed as rival gangs fighting over tax revenue and regulatory power. Under the present state, the federal government levies many taxes, such as corporate, income, capital gains, etc., which are inescapable, no matter what state one moves to.
If the federal government were dissolved, the states may move in to take the place of the federal government and start extracting more from corporate profits, income, and capital gains. Some states may establish their own central banks to print money to support government spending. There is no telling how individual states would respond to the dissolution of the US. Will their influence expand, or would they allow freedom to reign? The answer to that is not clear.
What is clear, however, is that there will be increased federalism or competition on the issues formerly relegated to the federal government. American citizens have little recourse against federal taxes, but they do command a greater level of influence over state taxes. The Federal government faces less tax competition than an individual state; therefore, it is unlikely that the states will increase tax extractions to compensate for the decreased federal tax burden brought about by national divorce. Competition between the states will likely keep the total tax burden below the present tax burden, therefore, lowering the barriers to travel between the states.
It is also worth discussing what the explicit immigration policy of each state would look like. Will Pennsylvania prohibit New Yorkers from traveling into their state or vice versa? Probably not. Will South Carolinans and North Carolinans be allowed to freely travel between their respective states? Most likely. What will happen is that states will adopt their own immigration policies and/or establish immigration agreements between states.
One aspect of this debate that is not usually talked about is how the states will regulate immigration from countries that were never US states such as Mexico, Canada, and European nations. It is unlikely that state immigration policies with respect to these countries will be any more restrictive than the current federal guidelines.
It is almost impossible to legally immigrate to the U.S., so it is hard to imagine a more restrictive system. States would likely act to allow the entry of high quality immigrants from other countries, and since the states would be no longer bound by the birthright citizenship clause of the 14th amendment, the states would be more willing to allow immigration since there would not be as large of a threat of political upheaval caused by an increase in the immigrant populace.
Furthermore, it would be a lot less cost efficient for each and every state to regulate their borders and prevent immigrants unwanted by the political authorities. Rather than the federal government forcing a take-it-or-leave-it policy of immigration on the states, each state would have to justify their restrictive immigration policies to their populace, which would be much more capable of exerting their will than they are under the current system.
For example, Texas would have to manage a 3,000-mile-long plus border with Mexico and other former states compared to the 1,254-mile-long border presently shared between Texas and Mexico that is partially secured by the federal government, which is funded by tax extractions from the other states. In the scenario of national divorce, Texas would be deprived of this subsidized border enforcement, and they would be presented with an even larger border to centrally manage. Faced with these costs and the politicization of immigration that national divorce would likely bring, Texas would be deterred from protecting their border as much as the current federal immigration policy does.
Multiplying this problem across the states, one sees the tremendous cost of regulating the borders becomes evident. In response to the high cost, the stricter budget constraint, and the aforementioned lower political cost of allowing immigration, many states will most likely opt for a less strict immigration policy or no policy at all.
The point of all of this is to say that the topic of immigration is complicated, and the present system is not as easily classifiable as Jonathan Casey suggests it is. The present immigration system between the states is far from a perfect open borders system, and there are many reasons to believe that there would be less legal impediments to immigration after national divorce.
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