¹ For critical discussion of the terminological issues and related matters, see Nicholas P. De Genova, “Migrant ‘Illegality’ and Deportability in Everyday Life,” Annual Review of Anthropology 31 (2002), pp. 419–47.

² The scholarly literature on irregular migrants is relatively thin and explicitly normative discussions are rare. I do not know of any previous work by a political theorist or philosopher that takes questions about the rights of irregular migrants as its focus. Legal studies often include normative dimensions, though these are usually tied to particular legal traditions. The best work on irregular migrants in American law is by Linda Bosniak. See, e.g., Linda S. Bosniak, “Exclusion and Membership: The Dual Identity of the Undocumented Worker under United States Law,” Wisconsin Law Review 6 (1988), pp. 955–1042; Linda S. Bosniak, “Opposing Prop. 187: Undocumented Immigrants and the National Imagination,” Connecticut Law Review 28, no. 3 (1996), pp. 555–619; Linda S. Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, N.J.: Princeton University Press, 2006); and Linda S. Bosniak, “The Undocumented Immigrant: Contending Policy Approaches,” in Carol M. Swain, ed., Debating Immigration (Cambridge: Cambridge University Press, 2007), pp. 85–94. Owen Fiss has an important argument about the implications for irregular migrants of the American constitutional commitment to equality in Owen Fiss, “The Immigrant as Pariah,” Boston Review 23, no. 5 (October/November 1998), pp. 4–7. The same issue contains several responses to this article and a reply by Fiss. Some studies focus on the rights of irregular migrants under human rights laws, whether national, regional, or international. See, e.g., Barbara Bogusz et al., eds., Irregular Migration and Human Rights: Theoretical, European and International Perspectives (Leiden: Martinus Nijhoff, 2004). There are also a number of sociological and policy studies that, while primarily empirical, include critical analyses and normative claims, as, e.g., Bill Jordan and Franck Düvell, Irregular Migration: The Dilemmas of Transnational Mobility (Northampton, Mass.: Edward Elgar, 2002); Joanne van der Leun, Looking for Loopholes: Processes of Incorporation of Illegal Immigrants in the Netherlands (Amsterdam: Amsterdam University Press, 2003); and Helene Hayes, U.S. Immigration Policy and the Undocumented: Ambivalent Laws, Furtive Lives (Westport, Conn.: Praeger, 2001). Matthew Gibney makes some brief but explicit normative claims in the final section of his report synthesizing empirical research on irregular migrants in three European states: Matthew J. Gibney, “Outside the Protection of the Law: The Situation of Irregular Migrants in Europe,” Refugee Studies Centre Working Paper no. 6 (December 2000). There are also a few important historical studies with normative implications, notably Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, N.J.: Princeton University Press, 2004).

³ See Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders,” Review of Politics 49, no. 2 (1987), pp. 251–73.

⁴ One of the objections to the popular terms “illegal aliens” and “illegal immigrants” is that such terms may be taken to imply that migrants in these categories have no legal rights whatsoever. Hence the counter-slogan “No one is illegal.” As I note below, however, even the strongest critics of unauthorized migration will not actually defend the claim that irregular migrants have no legal rights, if they address the question directly.

⁵ The treatment of detainees at Guantanamo Bay and the U.S. administration's public defense of that treatment arguably constitute an exception to this general rule that, in a democratic state, no one is outside the pale of the law's protection. On the other hand, this treatment has been widely criticized throughout the world as a violation of the rule of law, American courts have (at last) set some limits on what the government can do to the detainees, and even the defenders of Guantanamo normally claim that it is an exception, justified by the extreme danger of terrorism, rather than a legitimate exercise of a routine governmental power.

⁶ Joseph H. Carens, “Membership and Morality: Admission to Citizenship in Liberal Democratic States,” in Rogers Brubaker, ed., Immigration and the Politics of Citizenship in Europe and North America (Lanham, Md.: University Press of America, 1989), pp. 31–49.

⁷ In the United States, the taxes often go to one level of government (federal) while the costs of schooling are borne by another (state and local), but that does not affect the general point about the net fiscal burdens and benefits flowing from irregular migration.

⁸ Decisions on whether an irregular migrant seeking work will settle in the receiving state or engage in cyclical migration may be more affected by the ease or difficulty of the cyclical migration option than by the legal availability of education for children.

⁹ I have defended this practice from a normative perspective in Joseph H. Carens, “Live-in Domestics, Seasonal Workers, and Others Hard to Locate on the Map of Democracy,” Journal of Political Philosophy (forthcoming).

¹⁰ This assumes that these rights are (reasonably) effective, which is often not the case in practice. I discuss this issue more below.

¹¹ For an extensive discussion of the legal rights of irregular migrants in the United States, see Bosniak, “Exclusion and Membership.”

¹² The next three paragraphs are adapted from Carens, “Live-in Domestics.”

¹³ I do not mean to treat this as a purely formal question, however. If a particular economic activity is carried out almost entirely by irregular migrant workers (as might be the case, for example, with some sorts of agricultural or domestic work), and if that kind of economic activity is less regulated than other forms of work, we might inquire whether this is a way of covertly setting different rules for irregular migrants without saying so publicly.

¹⁴ In most insurance arrangements—pensions are an exception—one hopes that one will never need to collect the benefits, since these compensate for a hardship one would prefer not to face.

¹⁵ See Carens, “Live-in Domestics,” for further discussion.

¹⁶ See Joseph H. Carens, “Citizenship and Civil Society: What Rights for Residents?” in Randall Hansen and Patrick Weil, eds., Dual Citizenship, Social Rights and Federal Citizenship in the U.S. and Europe: The Reinvention of Citizenship (Oxford: Berghahn Books, 2002), pp. 100–120.

¹⁷ See Carens, “Live-in Domestics.”

¹⁸ For discussion of Proposition 187, see Bosniak, “Opposing Prop. 187.”

¹⁹ See Carens, “Live-in Domestics.”

²⁰ I have argued elsewhere that the passage of time undermines the legitimacy of keeping migrants in an irregular status at all. See Joseph H. Carens, “Democracy and Irregular Migration” (University of Toronto, unpublished). If that argument is accepted, the issue of the migrants’ long-term access to redistributive social programs will be rendered moot. However, I have excluded this sort of argument from consideration in this article.

²¹ See Bosniak, “The Undocumented Migrant.”