Policy choices that impact mobility will have profound implications for our politics on the local, federal and global level in the coming years.  A few examples: in recent months, images of families parted at national borders in settings that range from Mexico to Ukraine dominated many of our news feeds. Domestically, commuting and residential patterns in the US have changed at least temporarily due to COVID-19 related “work from home” opportunities. Over a longer time frame, exclusionary zoning, market forces and agglomeration economics, embody tensions over whether we live in climate-efficient  equitable cities, shrinking “minimal cities,” megacities designed to attract and cohere the “creative class” or sprawling metropolitan regions dominated by single family zoning enclaves defined by income. How Americans sort themselves to live, work, and achieve educational attainment can perpetuate inequality, but also can open up opportunity and expand choice—sometimes all at once, and often depending on who you are.  The salience of mobility issues are a continuum whether across national borders, or within nations.

On January 27, 2022, Georgetown Law’s Project on State and Local Government Policy and Law (SALPAL), in cooperation with SLogLaw Blog, hosted a panel discussion with Professor Ilya Somin of George Mason University on his new book, Free to Move: Foot Voting, Migration, and Political Freedom, Revised Edition (Oxford University Press, 2021). Commentators joining Professor Somin were Dean Rose Cuison-Villazor of Rutgers Law School, Professor Sheila Foster of Georgetown University Law Center, and Professor David N. Schleicher of Yale Law School. Meryl Chertoff, Executive Director of SALPAL and Adjunct Professor of Law, moderated. Chertoff, Foster and Schleicher are founding editors of SLoGLaw, the State and Local Government Law Blog, and Somin is a contributor to the blog. The discussion illuminated one of Somin’s leading arguments: that foot voting at the global, federal and regional level exhibits some common attributes.

You can view the video here.

Somin’s book, revised based on new developments coming after the 2020 edition, focus on three interrelated issues: foot voting in a federalist system, foot voting in the context of international migration, and foot voting in the context of private communities. The 2021 edition supplements his earlier version by refuting arguments that the pandemic justifies immigration restrictions to stop the spread of COVID-19 and other contagious disease, as well as new data on migration within the US to states like Florida, Arizona and Texas, which have adopted a market-based deregulated housing model emphasizing access to single-family housing, often in private homeowner association based communities.

The central premise of Somin’s argument is that ballot box voting is a poor proxy for political preference. He asserts that an individual’s vote has an infinitesimal change of making a difference in any given election (although conceding that the more local the race, the more each vote matters) and that voters lack the basic facts in most cases to make informed choices in ballot box voting. Foot voting, Somin contends, is a superior means of expressing choice.

By foot voting, Somin means not just voice or exit, as explicated in the work of authors like Albert Hirschman, but intentional choice of where one lives and with whom; it applies not only to Tieboutian sorting, wherein the citizen-consumer seeks out an optimal package of goods and services, but also moves based on subjective choices about cultural and political affinity. Thus, Somin is interested not only in interstate and interregional competition for residents based on tax policy, regulatory burden and job or educational opportunity, but also on preferences for private communities, like homeowner associations, condominiums and private planned communities, where over 70 million Americans reside, that reflect very granular choices about ones’ neighbors and lifestyle.

Somin’s views with respect to international migration are iconoclastic. He observes that a world without immigration restrictions would have double its current GDP, would double or triple income for individual adult migrants, and would allow many people to escape dysfunctional and corrupt governments. And while his ideological allies on some other issues have restrictive views on international migration, Somin spends a good bit of his book, and a proportionate amount of his presentation on January 27, demolishing some of the most familiar cavils with liberal immigration policy.

He takes aim at three categories of argument

• A general right of nations to exclude persons
• The ability of nations to bar people because of specific negative effects
• The allegation that immigrants vote for “unsuitable” candidates for political office

Somin categorically rejects the argument that there is any “particular owner of a country” (an argument that has particular resonance as I write this summary) and the analogy of private ownership to national status, since it implies governments are entitled to vast powers to oppress natives, as well as immigrants. He also rejects arguments that particular racial or ethnic groups have the right to exclude others from “their” territory, a theory analogous to justifications for systems of internal racial segregation, such as apartheid. Somin also rejects the argument that migrants commit crime out of proportion to their numbers, citing data to the contrary. He uses data to rebut the claim on voting as well. Finally, Somin argues that any adverse impacts of immigration can be addressed through what he calls “keyhole solutions”—the least restrictive and most tailored means of addressing adverse impacts, illustrated by, for example, welfare benefits limitations on recent arrivals. He argues that new wealth created by free migration can be used to offset any adverse consequences.

SHEILA R. FOSTER, Scott K. Ginsburg Professor of Urban Law and Policy; Professor of Public Policy and Associate Dean for Diversity, Equity and Inclusion at Georgetown law responded: agreeing, with Somin’s points that mobility can foster racial and ethnic equality and allow individuals to choose environments which are freer of bias. She noted with approval Somin’s reference to the Great Migration in the United States, the move of over six million African-American citizens from the Jim Crow South to northern cities from 1916 to 1970, in search of greater job and education opportunities, and fewer formal legal obstacles to achievement.  She noted, though, that mobility continues to be unequally available to all. Mobility dynamics and macroeconomic market-based mobility exclusion are accounted for in Somin’s analysis of the international migration picture, but not in the analysis of domestic migration, a gap in Foster’s view. The cost of moving is a key constraint. Racial stratification remains significant in mobility domestically. Also significant, the “agglomeration economies” of cities like New York, Washington, D.C. and San Francisco and similar megacities (including other global capitols) make them job and home-buying magnets disproportionately for the “creative class” but leave them out of reach to many due to high housing costs and stratified job markets, where wage gains are outmatched by housing costs. Left behind are those living in older, denser urban regions in the US like Detroit and St. Louis. This stratification has a racial valence as well. So, argues Foster, do aspects of the housing market like historic and contemporary redlining,  disparities in appraisals and access to mortgage financing.  Foster doubts that an efficient market can overcome the impact of past racial discrimination without major government policy interventions.

ROSE CUISON-VILLAZOR, Interim Dean, Professor of Law and Chancellor’s Social Justice Scholar, Rutgers Law School offered the panel’s expert commentary on immigration and international human rights law.  She confirmed the importance of immigration as a form of foot voting that enhances opportunity and promotes personal freedom, and endorsed Somin’s premise that nation-states have no right to exclude on the basis of inherent sovereignty and right to self-determination. She noted that exclusion, both in the US and abroad, have often been enshrined in formal law, including the 1875 Page Act, prohibiting Chinese women from entering the US, a law preceding the better-known Chinese Exclusion Act that followed in 1882. It was not until 1965 that race-based exclusions were lifted from US immigration statutes.  Cuison-Villazor queried whether Somin’s arguments was in sum, advocacy for open borders, and noted that there is support in international human rights law for limits on the right to exclude even in the absence of, for example, an asylum claim. She also noted that the courts, as well as Congress have contributed to racialist reasoning in immigration law. Cases like Chae Chan Ping v United States, (1889) deferring to legislative modification of treaty obligations and upholding the exclusion of a Chinese legal resident non-citizen, illustrates that racialist immigration exclusions were, only a century ago, seen as an essential element of self-determination in the US. Turning to another theme in Somin’s presentation, Cuison-Villazor took issue with Somin’s defense of the right to exclude by private property owners, instead endorsing a social relations theory of property as noted by Nestor Davidson in a 2009 article arguing that the status-signaling function of property serves as an important locus for symbolic meaning through which people compare themselves to others, thus implicating additional considerations in the analysis of the link between property and personhood.

DAVID N. SCHLEICHER, Professor of Law at Yale Law School, has made his own contribution to the conversation around mobility in federal systems in, among other writings, his article Stuck!: The Law and Economics of Residential Stagnation (2017) Schelicher’s observation related to the idea of foot voting as a form of political expression. Schleicher asks whether a move to attend school, assure family cohesion or to be within commuting distance of a job qualifies as a political choice, in the way that the Great Migration (ed.: or the Big Sort) was. Schleicher notes that the interest of local government is generally in ensuring stability of existing populations, which supports incumbent political leadership, although politicians may occasionally have contrary motives to encourage outmigration to consolidate power in its base. Schleicher argues that higher order government levels are best-positioned to enact policy that reduces friction and facilitates mobility. Schleicher, for different reasons than Somin, therefore thinks that a Tieboutian model is incomplete. Somin’s reply to Schleicher is that policies that create jobs, or encourage schools to attract out-of-region students is itself political, and therefore is encompassed by his theory.