Cross-posted from Dorf on Law

The NYPD and other first responders were still tending to the dead and wounded late last week when the news that ISIS-inspired killer Sayfullo Saipov had come to the U.S. from Uzbekistan as a "diversity lottery winner" prompted President Trump to denounce the diversity lottery and to take a stab at NY Senator Chuck Schumer, despite Schumer's efforts to repeal the diversity lottery. Another day, another killing, another presidential debasement. Although pundits immediately observed the inconsistency between Trump's willingness to leap to policy action when Muslim immigrants kill versus his go-slow approach when white Christian Americans (more frequently) kill, that observation may be beside the point in this case. Even a stopped clock is right twice a day, and this time Trump may have fortuitously said something sensible.

Yale law professor Peter Schuck, writing in the New York Times, followed his condemnation of Trump's characteristic factual errors with a careful critique of both the origin of the diversity lottery (as a means of boosting immigration from Ireland) and its current impact (it crowds out family members of people lawfully here as well as people with needed skills). Much to the same effect, my colleague Steve Yale-Loehrput the point bluntly: “A lottery is a crazy way to run an immigration system.”

Professors Schuck and Yale-Loehr know more than I do about immigration law and policy. I am thus happy to concede that they--and, inadvertently, Trump--could be right that we would be better off without a diversity lottery. That said, I'd like to register at least a tiny bit of skepticism.

Prof. Schuck suggests reallocating the 50,000 green cards currently issued by the diversity lottery to other categories of more deserving immigrants. As noted above, these would be chiefly family-based or skills-based. Schuck also suggests auctioning off some portion of the visas.

I have a viscerally negative reaction to the idea of an auction or other fee-based mechanism that will screen for wealth, at least with respect to certain sorts of basic functions of the state. The 24th Amendment forbids poll taxes. We likewise don't permit property qualifications for jury service (or as a means of buying one's way out of jury service). The last time we had a wartime draft, we shifted from a system of ostensibly merit-based deferments (e.g., for students) to a lottery on the ground that the latter is more fair.

Immigration is not quite the same as these core political rights. Indeed, to the extent that voting and military and jury service are duties of citizens or permanent residents, while immigration is for people who are not yet and may never become citizens, one could say they're opposites. And yet immigration is fundamentally about becoming a citizen. It is a cliche (because so clearly true) that most people who were born as U.S. citizens could not pass a citizenship test without cramming. Immigration is thus all about citizenship: the line between citizens and non-citizens; the rights and duties of citizens; and what it takes to become a citizen.

And it's right there on the Statue of Liberty: "Give me your tired, your poor . . . ." So no, I don't think an auction would be an improvement over a lottery.

What about Prof. Schuck's other alternatives? These might indeed be improvements over the diversity-based lottery. I am certain that resettling an additional 50,000 refugees annually would be a better way to channel scarce immigration opportunities to people who need them most. So I'll concede that we could do better by reallocating most if not all of those 50,000 spaces.

But the best should not be the enemy of the good. There is reason to think that if the current Congress were to pass a bill that Trump would sign to end the diversity lottery, it would replace it with nothing.

The argument that the diversity lottery should be ended because the slots it allocates could be allocated in a better way reminds me a little of arguments made in other contexts: Affirmative action in universities should be ended, because we could do more for racial equality with massive investment in early education; habeas corpus review should be ended, because defendants' rights would be better protected by ensuring truly effective trial counsel; etc. These are good arguments for adopting a package of reforms that ends the old program and starts and entrenches the new one. Yet they also risk building support for simply ending the sub-optimal-but-still-beneficial program without replacing it with something better. And given the political climate, that is the most likely outcome.

I also want to say something for the idea of a lottery, at least for some number of immigration spots, even if not for 50,000 per year, even in a world in which most of the balance of those spots are reallocated sensibly rather than simply eliminated.

To my mind, an immigration lottery has symbolic value. It symbolizes the role that luck plays in all our lives, including with respect to citizenship.

Talk of "merit-based" immigration and dessert in these matters tends to assume that those of us who acquired citizenship at birth (either by being born in the U.S. or outside the U.S. to a citizen parent) in some way earned our citizenship. Yet that is plainly false. We citizens since birth simply won a different lottery--what philosophers sometimes call the "lottery of birth." Holding an actual lottery to allocate some number of green cards and thus ultimately citizenship can serve as a reminder that the majority who became citizens at birth have already received an enormous and unearned benefit.

That, in turn, could foster an attitude of greater humility and compassion with respect to people living in other countries, especially countries that are sources of both documented and undocumented immigrants. A lottery could serve as a reminder that the people who want U.S. citizenship want what most of us citizens were lucky enough to win already.

Could increased immigration from other categories serve the same purpose? Partly, but not quite as effectively as at least a residual lottery. Family-based immigration and preferences for certain economically useful skills serve important purposes, but they tend to reinforce the false view that people in the United States in some sense deserve to be here. We don't. We are simply lucky. An immigration lottery symbolizes that luck.

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