Tag Archives: immigration

Instead of rioting over Roe, Democrats should bring a case on immigration

Roe vs. Wade came as a shock, even to people who believe the power to regulate abortion is reserved to the states. Lost in the triumphant celebrations of the decision on one side and the abject horror and hysteria on the other is the fact states like my own (New York) are now less restricted in liberalization of their abortion laws.

The 1973 decision didn’t just strike down state laws prohibiting abortion. It wrote new ones, something no court, state or federal, has any legitimate power to do. This is the other edge of the sword in allowing federal judges to override state law. They have taken the power away from the states forever.

The Court did two things in its Roe decision. First, it implicitly affirmed the Incorporation Doctrine, the legal theory that the Fourteenth Amendment “incorporated” most of the first ten amendments to the Constitution to apply against the states. I recently had the opportunity to discuss this with constitutional scholar and historian Kevin Gutzman on an episode of my podcast (neither of us believe the doctrine is valid).

The Incorporation Doctrine was necessary to arrive at the original Roe decision. It provides the basis for a federal court to strike down state laws. Without this doctrine, the Bill of Rights is only applicable to the federal government, leaving protection of individual rights to the bills of rights in the state constitutions.

Second, the Court narrowed interpretation of the Incorporation Doctrine to those rights specifically enumerated in the Constitution or “rooted in the Nation’s history and tradition.” The Court did not find any evidence of an American tradition of a right to abortion, but rather a tradition of precisely the opposite: the longstanding tradition of states prohibiting abortion before Roe.

Note that this is not a finding that no right to abortion should exist. It is merely a finding that protecting this right, if it does exist, is not a power delegated to the federal government.

Neither is regulating immigration, according to James Madison, the man who wrote the words of the Constitution. In his Virginia Resolution of 1798, in opposition to the Alien and Sedition Acts, he wrote,

That the General Assembly doth particularly protest against the palpable and alarming infractions of the constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government;

Like Roe vs. Wade, the federal government’s power to regulate immigration was simply “discovered” by the Supreme Court in a decision at least as spurious as Roe. There are no words in the Constitution indicating this power is delegated to the federal government.

Proponents sometimes point to the naturalization power as somehow implying a power to regulate immigration. But this is ridiculous. Naturalization concerns only the power to determine who becomes a citizen of the United States. It has nothing to do with regulating who can or cannot cross the borders of any of the states.

Others point to the 1808 clause as meaning the federal government was delegated the power after 1808. While this argument is slightly more plausible, both it and the naturalization clause were written by Madison himself, who nevertheless stated regulating immigration was a power “no where delegated.”

Jefferson added in his own Kentucky Resolution of the same year that the 1808 clause was added merely out of “abundant caution,” not a grant of this new power after 1808.

As there has been no subsequent amendment to the Constitution delegating this power to the federal government, it must remain with the states.

While the Incorporation Doctrine would not apply as this is not a dispute regarding the federal Bill of Rights, it is noteworthy that at the time of the decision, there was no tradition or history of the federal government regulating immigration. On the contrary, the case in which the Court concluded this was a federal power concerned a dispute over the way the California State immigration officers were regulating immigration.

If there has been a federal power as contentious as regulating abortion, it has been regulation of immigration. Cities run by liberal politicians have declared themselves “sanctuary cities” in defiance of federal immigration laws. States like Florida and Texas, run by conservative politicians, have taken to shipping “undocumented immigrants” sent to their states either back to their point of entry or to Washington, D.C. in protest.

This is no way to conduct civil society.

The rancor over immigration is the predictable result of the federal government exercising authority never delegated to it by the states. The Post Office may be abysmal, but it doesn’t inspire the hatred federal immigration enforcement does because it is recognized as a power the states agreed to delegate to the federal government.

If either Democrats or Republicans brought a case on immigration, it would test the Court’s conviction to its constitutional principles. Immigration checks all the boxes of the Court’s own reasoning for a power improperly usurped by the federal government through a previous SCOTUS decision. In Dobbs, the Court wrote, “This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”

In the cases of both abortion and immigration, that is precisely what the Court did. Overturning Chy Lung vs. Freeman would right precisely the same wrong.

It is not as if federal regulation of immigration is working now. Under both liberal and conservative presidents, the process to immigrate legally has been woefully deficient, resulting in millions of immigrants entering the country illegally or (more often) staying long past their visas expire. There is every reason to believe the states would do a better job at this and could also tailor their immigration laws to be as strict or lenient as they wish.

To those who find the consequentialist arguments of Chy Lung vs. Freeman compelling, there is an opportunity to offer an amendment to the Constitution to properly delegate this power to the federal government. This would not simply be a dead-on-arrival letter. It would give Americans across the political spectrum a chance for input on the language of such an amendment and the limits, or lack thereof, on the power.

If no amendment agreeable to the requisite number of states can be written, then the process of trying will have proven this is a power which must be reserved to the states. If an amendment can be ratified, then the federal government can go on sucking at regulating immigration, just as it does at delivering the mail, without risking a civil war.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

The Gaping Hole in the Libertarian Immigration Debate

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I watched with interest the debate on immigration between Dave Smith and Spike Cohen. I encourage everyone, libertarian or not, to watch it as well. Neither participant called the other a fake libertarian, a racist, a communist, or (insert pejorative here). On the contrary, Smith hurt himself by spending too much time praising Spike during his opening.

Instead of dumb name calling, the debate included thoughtful and thought-provoking arguments for both positions, which were “open borders” and “not open borders.” As to who won the debate, I’ll leave that to the judgment of the viewer. There were no knockdowns.

Like Dave, Spike, and host Marc Clair, I am an ancap. So, my ideal solution would be privatizing everything. And as for my personal feelings about all three, I can only say:

However, especially since it was largely representative of most libertarian discussions on immigration, I am compelled to point out a startling omission in the debate. That was the apparent false assumption by both Dave and Spike that the only options were between the federal government regulating immigration and open borders. Neither even mentioned the constitutional, historical argument: state regulation of immigration.

I was waiting for the conversation to get there until Spike made a statement (about the 43:43 mark), unrefuted by Dave, that since there was no Ellis Island or similar federal immigration enforcement operation for the republic’s first one hundred years, the United States had “straight up open borders” during that time.

No, they didn’t. It is true the federal government wasn’t regulating immigration because the states were regulating it. As I explained in more detail here, the federal government only got involved in immigration as a result of Supreme Court decisions dealing with state immigration enforcement, particularly Chy Lung vs. Freeman, arguably the most spurious decision the Court ever issued on the constitutionality of a federal power.

Without rehashing the linked article above, they didn’t really make an argument the power was delegated. Their decision was based solely on the reasoning that it would be disastrous if the federal government didn’t have the power to regulate immigration, so therefore it must have it. They explained why the federal government should be delegated the power, not that it had already been delegated the power.

It wasn’t the first time the federal government attempted this usurpation. Most people remember the Alien and Sedition Acts for their suppression of free speech, but that was only half the problem. The other half, emphatically argued by both Jefferson and Madison in the Kentucky and Virginia Resolutions in 1798, was that the Alien Act was unconstitutional because it exercised a power (regulating immigration) reserved to the states. Their argument for state nullification of the Alien Act amounted to the same argument made by “sanctuary cities,” only at the state level.

Conservatives often argue the power to regulate immigration is granted to the federal government because it is part and parcel of the power to regulate naturalization (becoming a citizen). This is ludicrous. The vast majority of people who cross the border have no intention of becoming citizens and the two powers are completely distinct.

Others point to the 1808 clause, which has slightly more superficial merit, but you can read my arguments against that in the linked article as well.

For the record, Jefferson addressed the 1808 clause in the Kentucky Resolution and Madison, who wrote the words of both the Naturalization and 1808 clauses, nevertheless stated regulating immigration was a power “no where delegated to the federal government.”

Since there hasn’t been an amendment to delegate this power since then, it must still reside with the states or the people.

The constitutional approach provides two alternative solutions to the immigration question that could work for both conservatives and liberals and be more tolerable to libertarians:

Acknowledge the federal government does not posses this power and propose an amendment to delegate it to the feds.
Acknowledge the federal government does not posses this power and allow the states to resume their authority as protected under the Tenth Amendment.

The amendment suggestion is more than just a formality. If an amendment were proposed, it would require a supermajority of states to ratify it. Out of the dogfight that would naturally follow, something agreeable to both sides might emerge.

If not, alternative #2 would be the default position. While that may appear unthinkable at first glance, allow me to point out that states are already availing themselves of this option right in front of our eyes.

Blue states are declaring “sanctuary cities,” meaning they won’t expend their own resources to enforce federal immigration laws. The governor of Texas says his state is building its own border wall. Florida governor Ron DeSantis wants $8 million from his legislature to “create a new program that would allow the state to contract with private companies to transport ‘unauthorized aliens’ out of Florida.”

Just like marijuana laws, states are beginning to nullify federal immigration laws and any honest proponent of strict construction of the Constitution should admit they have the right to do so.

It’s a far cry from a private property system, but it’s much closer than either federal enforcement of immigration laws or federal subsidization of immigration into the states. If we can’t have a libertarian solution, we can at least have a constitutional one.

Supporting this position checks all the boxes brought up by the participants in the debate. No libertarian candidate would have to support the disastrous federal immigration system. Instead, they could tell voters in each state they support their right to determine the rules themselves, without interference from Washington.

It would also be eminently more practical. It would not mean routine interstate travel would be disrupted by authorities attempting to physically stop people from crossing state lines. The federal government has already shown that to be futile.

State government immigration departments could focus on those people establishing residence within the state rather than attempting to prevent anyone from merely driving through. Those arriving at airports or ports from foreign countries could be processed the same way by state officials as they are now by federal officials, at each state’s discretion.

Not every state would regulate immigration the same way. Those states that wanted open borders could have them. Those that wanted border walls could build them. Those that wanted something in the middle could have that, too.

Nothing governments do can be truly called a market solution but allowing up to fifty different immigration policies would much more closely approximate one than the current one-size-fits-all approach. And it would allow a more scientific way to answer not only whether more or less immigration is good for the current state populations but how much or little regulation is optimal. There may be up to fifty answers to the latter question.

No, the constitutional approach is not perfect, just as neither solution proposed in the debate was perfect. But it beats a civil war between the very unlibertarian factions currently seeking control at the federal level. And it has the potential to evolve into something closer to a private property system than could ever emerge with Washington in charge.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

It’s Not Democracy That’s Dying; It’s Our Anti-Democratic Safeguards

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Everyone is worried about “our democracy.” The left believes Donald Trump is trying to destroy it by challenging the results of the 2020 presidential election, aided by state legislatures controlled by his party passing stricter voter identification and ballot verification laws.

The right believes the Democratic Party is trying to destroy democracy by stuffing ballot boxes with illegitimate votes and flooding the country with undocumented immigrants who will either vote illegally themselves or have children who will eventually vote Democrat.

They all agree on one thing. Our democracy is in peril, and it must be saved.

Certainly, if there was enough fraud to change the results of any election, that is a problem. But what is tearing our society apart is not destruction of our democracy, because we don’t live in a democracy. And it isn’t just a republic, either. All “republic” means is that the people elect representatives to perform the various functions of government. North Korea is a republic; China is a republic. Neither are countries in which most Americans would want to live.

No, what made the American system better was not its democratic elections or republican form but it’s anti-democratic safeguards. The Constitution allows for representatives to be elected democratically – although only the House of Representatives was originally by direct vote of the people – but the rest of its provisions are there to protect us from democracy.

The bicameral legislature, presidential veto, separation of powers, and strictly enumerated powers are all intended to protect individuals from what democratically elected representatives might do.

The Bill of Rights is completely anti-democratic. Its articles say the democratically elected Congress shall make no law regarding the establishment of religion, shall not infringe the rights of free speech, or to bear arms. They say the democratically elected executive shall not conduct unreasonable searches, punish you without due process, etc.

The key to all the so-called “checks and balances” in the Constitution is they set up adversarial processes that must occur before power is exercised.

Older readers may remember the Schoolhouse Rock cartoon, “I’m Just a Bill.” It attempts to educate youngsters on all the hoops a bill must jump through to become a law. While clever, the problem with its tone is the strong implication that the bill failing to become a law is regrettable, even tragic.

That the Constitution makes it difficult to pass a law is a feature, not a bug.

The popular sentiment that Congress “isn’t getting anything done” springs from the same misconception. When a bill is proposed and subsequently either dies in committee or fails to pass a general vote, Congress did indeed “get something done.” It vetted the proposition to require or prohibit some human activity by force and (usually wisely) declined to do so. That’s as much “getting something done” as passing the bill – and usually ages better.

Yet, while still professing fidelity to the Constitution, federal legislators have passed many laws allowing the executive branch to bypass this entire process and effectively legislate by fiat. If you’re wondering how President Trump could levy a tariff (a tax) on imports without a law passed by Congress, it’s because Congress passed the Trade Act of 1974, effectively allowing the president to exercise this power exclusively delegated to Congress if, in his sole judgment, “any existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States.”

The National Emergencies Act similarly transfers legislative power to the president by his merely declaring an emergency to exist. Worse yet, the “state of emergency” doesn’t end until the president declares it is over or Congress passes a joint resolution to end it – which can be vetoed by the president!

As I’ve written before, the entire New Deal constitutes an unconstitutional transfer of power from the legislature to the executive by allowing regulatory agencies to not only write their own regulations (legislate) but often usurp the judicial power by deciding disputes in their own administrative courts.

That’s why President Biden can mandate vaccines for businesses with over one hundred employees without new legislation from Congress. He can simply have OSHA require it through “regulation” – a euphemism for the executive branch legislating.

Needless to say, Congress cannot assign powers exclusively delegated to itself to another branch of the government, no matter how many legal or logical acrobatics Supreme Court justices have performed saying they can. There would be no need for Article V of the Constitution if Congress could merely override the separation of powers or other constitutional constraints with legislation. And the Constitution certainly provides for emergencies. There is no emergency more serious than war, for which the Constitution clearly provides.

Yet, no one blinks an eye when a president decides to bomb Syria (name one that hasn’t lately) without a declaration of war and in violation of the War Powers Resolution which specifically limits the president’s power to “introduce the United States Armed Forces into hostilities” to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” [emphasis added]

The list of violations of the Constitution’s limitations on power and separation of those powers it does grant is too long to cover here. But they all have one thing in common: they eliminate adversarial processes capable of overriding the will of majority – of overriding democracy – to preserve liberty.

Everyone recognizes the political climate in the United States is toxic and many legitimately fear it will become violent. This isn’t because democracy is diminished. Rather, it is because the people of these states have tolerated the erosion or elimination of most restraints on democracy built into our Constitution.

My own view of the Constitution is much closer to Lysander Spooner’s than Madison’s or Jefferson’s. But as I said four years ago, the limits it places on federal power, especially in terms of the separation of powers between the federal and state governments, could prove useful in easing the pressure before the boiler explodes. While peaceful, full-scale secession from both the federal and state governments might be the philosophical ideal, it is much less likely than a “soft secession,” accomplished by simply enforcing the Constitution’s limits on federal government power.

That soft secession has already begun, although most of those seceding probably don’t realize they are doing so. Over half the states have nullified federal marijuana laws by passing state legislation legalizing their use for medical purposes, recreation, or both. Many blue state cities have declared themselves “sanctuary cities,” refusing to enforce federal immigration laws.

Most recently, Texas passed a law prohibiting abortion once a fetal heart rate is detectable, or more accurately clarifying laws prohibiting abortion never taken off the books after Roe v. Wade.

None of the federal laws or regulations in question are constitutional. They were all merely passed by Congress or enacted by executive edict and then, in some cases, “discovered” to be constitutional by the Supreme Court. Madison himself said regulating immigration was a power “no where delegated” to the federal government. And whether one considers abortion healthcare or homicide, the federal government isn’t given power over either.

Most people in red states have a visceral hatred for sanctuary cities, just as most in blue states hate the Texas abortion bill. And that’s just the point. These are matters that can only be dealt with locally. No supermajority of states ever has or ever will consent to the federal government imposing one policy in these areas over all the states.

The response to Covid-19 has followed the trend. In 2020, there was an increasingly diverse policy response as the pandemic progressed, with some states imposing severe lockdowns and mask mandates while others imposed less severe restrictions or none at all. South Dakota led the way in refusing from the start to close businesses or issue stay-at-home orders, followed by Florida in September 2020 and Iowa and Texas in early 2021.

As for President Biden’s vaccine mandate (announced but not yet written), Florida and Texas have already banned the mandates within their states, while South Dakota governor Kristi Noem took the most libertarian approach in neither mandating nor banning vaccine mandates for private businesses. Meanwhile, New York’s governor Kathy Hochul has ordered all healthcare workers in her state to get the vaccine and is prepared to call in National Guard personnel to replace those who don’t comply.

Many fear violent conflict resulting from state nullification of federal laws or regulations. But we haven’t seen that over nullification of marijuana prohibition and we wouldn’t likely see it when state governments take similar action on other issues.

Rather than a recipe for violence, more widespread soft secession from the present, unconstitutional system would allow the two dominant political tribes to stand down from their current, confrontational posture. And it would allow the rest of us to at least “pick our poison” in terms of which less-than-ideal system we would prefer.

Most important, it would save us all from what we have now: democracy run amok.

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Democracy Goes Out the Window During “Government Shutdowns”

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Important_government_shutdown_notice_for_the_Stature_of_Liberty Everyone loves democracy, until the vote doesn’t go their way. Then, there are protests, marches, recounts, and other forms of whining from everyone who doesn’t like the results. We saw that after Donald Trump’s election and after the 2018 midterms, when Democrats tried to keep recounting the votes in some races until they got the result they wanted.

Now, we’re seeing it with the impending “government shutdown.” I use quotation marks because two things are true. First, this time around, about 75% of the government is already funded through September 2019. Second, even when none of the government is funded, it doesn’t really shut down.

But it should.

Somehow, the strange notion has taken hold that when Congress votes not to pass a new bill, it “isn’t getting anything done.” Not true. If Congress takes a vote and the bill is voted down, Congress has done its job every bit as much as if the bill had passed. In most cases, it does us all more good voting bills down than passing them. Regardless, Congress is representing the people no less by voting “no .” There is no immutable law of nature that says new bills must be constantly passed. The system is actually set up to make new legislation difficult, not easy.

If you’re going to insist on the superstition that Congress does “the will of the people,” then at least be consistent. If Congress votes a bill down, that is as much the will of the people as passing one.

This Friday, Congress may very well fail to pass a bill to fund the remaining 25% of the government. If they don’t vote to appropriate those funds, then no money should be spent on any part of the government for which funds aren’t appropriated. Those aren’t my rules. It’s right there in the government’s own rule book, in black and white: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

By the way, spare me the “republic-not-a-democracy” comment blizzard. I know it better than you do. The form of government is a republic, but there is a lot of democracy baked in – more all the time, unfortunately, thanks to the Supreme Court’s rampage over what’s actually written into the Constitution. But even without their tyrannical creativity, the republic is built on a series of majority votes. That’s “democracy,” even if the government is not “a democracy.”

Regardless, the rules say majorities in both houses of Congress and the president have to approve any spending. When that doesn’t happen, those of us who want the government to shut down are supposed to get our way. After all, Congress represents us, too, whether we like it or not. That’s one of the key rationalizations for taxing us (“no taxation without representation”).

I won’t hold my breath waiting for the evangelists of democracy to follow the tenets of their own religion. Those seeking your money in the name of their deities rarely do.

Jefferson and Madison: Regulating Immigration a Power “No Where Delegated to the Federal Government”

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immigration_constitution President Trump announced his second nomination to the Supreme Court on Monday. Perhaps as forward in the minds of conservatives as preserving the right to keep and bear arms, expressly protected from federal infringement by the Second Amendment, is how the new justice might rule on the Trump administration’s various immigration policies, decried by the left as “fascist!” and supported by the right as the federal government’s “constitutional duty.”

Yet, federal regulation of immigration is a power both Thomas Jefferson and James Madison maintained was “no where delegated to the federal government.” And since no amendment has granted that power since they made that argument in 1798, it is exercised by the federal government without the consent of the governed, legitimized only by the same kind of “activist Court” conservatives condemn when it sanctions federal power they don’t like.

First, to the document itself. Conservatives make two arguments for the Constitution somehow delegating this power. One is completely spurious; the other more plausible, but ultimately without merit. The first argument is the power is granted with the words, “To establish an uniform Rule of Naturalization,” in Article I, Section 8. But “naturalization” concerns only who can become a citizen of the United States, not who can visit, work or live as a permanent alien. When pressed, even most reasonable immigration hawks will concede this.

The second argument concerns the first paragraph of Section 9, which reads, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” The reasoning here is that since the federal government is prohibited from banning migration (immigration) or importation (the slave trade) only until 1808, it must be granted the power to do so after 1808.

This is the same backwards reading of the Constitution – that anything not prohibited to the federal government must be within its powers – that conservatives scream bloody murder about on almost any other issue. It is true that for individuals possessing an inalienable right to liberty, a law which prohibits, for example, certain activity on Wednesdays and Fridays does not restrict individuals from that activity on any other days of the week. That is a correct legal interpretation for laws pertaining to individuals.

However, the Constitution is not a set of laws pertaining to individuals and the federal government does not have an inalienable right to liberty. On the contrary, the Constitution is written with the assumption the federal government has no power not delegated to it. The Tenth Amendment was ratified to ensure that point wasn’t lost. Therefore, just because certain powers are prohibited to the federal government by one or another clause of the Constitution, one cannot assume that any power not prohibited is granted. Only powers explicitly delegated are within the federal government’s purview. Strict constructionists go so far as to point out the words “expressly delegated” were used in many of the ratifying conventions, “expressly” left out by Madison in drafting the Tenth Amendment because he thought it unnecessary.

Read the rest at Foundation for Economic Education…

Why Progressives Should Let Republicans Repeal Obamacare and Close the Borders

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Last week, Senate Republicans were given bad news by Senate Parliamentarian Elizabeth MacDonough. She doesn’t believe Republicans can bypass cloture and repeal Obamacare with a simple majority by attaching its repeal to a spending bill.

As a libertarian, I’m glad to hear it. No, I do not like Obamacare any more than I like most other government programs, especially those that further enrich multi-billion dollar corporations on my dime. But I’m glad it’s still difficult to get things through the Senate. That’s how it’s supposed to be.

But progressives should feel differently. The should want to see at least two bills pass both houses, one repealing Obamacare and one blocking the president’s immigration policies. Progressives profess a belief in democracy and the Republicans have been democratically elected to both houses. Whether you agree with them or not, there’s no question repealing Obamacare and reversing the president’s immigration agenda were two of their strongest mandates.

Read the rest at The Huffington Post…

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Elysium: One freedom thumbs up, one down

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TAMPA, August 25, 2013 – It is 2154. A small, wealthy elite live on Elysium, a floating paradise orbiting the earth with stately mansions, majestic landscapes, clean air and perpetual sunshine. The rest of humanity lives on overpopulated, diseased and polluted earth.

The wealthy enjoy 22nd century medicine that can instantly cure any disease or injury, no matter how severe. The earth dwellers have overcrowded hospitals where care is backwards and rationed.

The film doubles as allegory on the illegal immigration issue, with the earth dwellers representing Mexicans and Elysium the United States. Most people on earth appear to be bilingual in English and Spanish, while the elitists in Elysium speak English and French.

It sounds like a typical, leftist Hollywood narrative and in some ways it is. However, it also contains some of what used to be good about the left. Elysium is generally good on criticizing the police state and bad on economic freedom.

The plot revolves around Max, a former petty criminal who has gone straight. Early in the film, Max is harassed and assaulted on his way to work by robot police officers who ask him what is in his bag. Max must then discuss the encounter with his robot parole officer, who extends Max’s parole based upon the incident.

The central conflict is created when Max is ordered by his boss to enter a compartment where a mechanical door has jammed. When Max frees the door, it slams shut on him and the compartment floods with radiation, delivering a lethal dose to Max. His only hope to save his life is to get to Elysium.

When Max learns that his childhood friend has a daughter with terminal leukemia, his quest becomes one to save not only himself but the sick girl. In order to do so, he must make a deal with an outlaw revolutionary to obtain access codes that will open the door to Elysium to whomever possesses them.

The film succeeds in painting a dreary picture of a society that has allowed unchecked government police power to combine with technology. Max’s entire criminal history along with data gleaned from ubiquitous surveillance is instantly available to robot cops and parole officers, who use that data against him despite his being innocent of the current charge. The film also succeeds in conveying the hopelessness that accompanies a society where upward mobility is actively suppressed by an entrenched elite.

The film fails from both an artistic and freedom perspective for several reasons. First, it leaves too many questions unanswered. How did those who build Elysium acquire their wealth? Was it through production and trade or some form of plunder? How do they maintain it? If the earth dwellers are uniformly poor, who does Elysium trade with? Why are the earth dwellers unable to build their own wealth? Why are they unable to develop the same miraculous healthcare technology? The viewer is left to speculate.

Based on the film’s conclusion, one can interpret the film as an indictment of private property itself. The earth dwellers cannot improve their condition because the elite own all of the natural resources and means of production. Their property rights are enforced by the brutal police state, which also suppresses any attempt by “undocumented” earth dwellers to enter Elysium. This leaves them no alternative but to toil away as “wage slaves” for the corporations.

Typical of Hollywood, the film makes no distinction between those who have acquired their wealth in exchange for enormous benefits bestowed on others and those who have acquired it through tax-funded government contracts or privileges. The only private company we are told anything about is Max’s employer, which ironically manufactures the robot policeman who assault Max at the beginning of the film.

That’s a government contract, funded by taxes, which are collected by force. But all government contracts ultimately rely on someone, somewhere creating real wealth, i.e. goods and services that actually improve the lives of consumers enough that they will voluntarily exchange their money for them. Where are these private companies? Where is the justice for them at the conclusion? The film is silent on these questions.

The healthcare issue is treated in an overly simplistic manner that even critics of private, for-profit medicine would be disappointed in. In short, the film removes all economics whatsoever from healthcare. The treatment machines used in Elysium are so miraculous that there is no discernible cost to curing people, outside of manufacturing the machines themselves. It cheapens the healthcare question by characterizing it as cartoonish elitists who simply refuse to allow the rest of society to access care out of contempt for their inferiority.

This allows the film to avoid confronting the real barriers to healthcare access. It doesn’t ask why the price of healthcare constantly rises while the prices of computers and cell phones fall. Perhaps the answers wouldn’t conform with the film’s narrative.

The idea of scarcity in general seems to be lost on the producers. They do not acknowledge that either healthcare or the other riches of Elysium are scarce or confront the way in which wealth is created and exchanged. The conclusion of the film suggests that if all of humanity were simply allowed to divide up society’s products equally among themselves, everyone would live happily ever after.

The immigration motif is equally unrealistic. Depicting Elysium as the United States and the earth as Mexico doesn’t work, because the Elysium and earth of the film together represent the real United States. That seems to be the whole point of the rest of the film. Simply opening the borders wouldn’t change anything. The immigrants would simply find themselves joining the lower class or forming a new, even lower one.

Ultimately, the film fails to face several realities. One is that all property is eventually private property. An apple cannot be owned “collectively” unless no one ever eats it. Once someone does, he has excluded every other human being from eating it. This is true of all goods and services. Even in Soviet Russia property was privately owned. What was different was how it was acquired. How would property be acquired more justly in Elysium? The film is again silent.

The film assumes that private property ownership is a purely artificial concept invented by “exploiters,” which persists only through violent oppression of the exploited. The police state is mischaracterized as an enforcer of property rights instead of a violator of them.

No consideration is given to whether producers have any right to keep the wealth they have produced or whether those who wish to acquire it from them have any obligation to obtain their consent. There is no explanation of why the “have nots” have any more legitimate claim to Elysium’s wealth than the “haves.”

On a more practical level, the film also ignores the question begged by resolution. After the wealth of society is divided up equally among everyone, who will produce what is needed tomorrow to sustain even bare subsistence? What will motivate them to produce it?

The Soviet Union and 20^th century China couldn’t answer those questions. Elysium doesn’t even try.

Elysium gets one freedom thumbs up for its ominous depiction of the police state. It gets one freedom thumbs down for its attack on private property and an additional freedom thumbs down for its oversimplification of complex economic problems, even by leftist standards.

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.