The Logic of Loopholes

All migration is a way around rules.

Last week, Joe Biden passed an executive order that makes it much easier for the U.S to send asylum-seekers back to their country of origin with virtually no questions asked.

It’s technically not an outright ban on asylum—the order applies only in periods when more than 2,500 people attempt to cross over into the U.S per day. Not is it indefinite: once daily “encounters” dip below 1,500 per day, the rule will no longer apply. But the former threshold has been consistently exceeded for years, so for all intents and purposes, it just got a lot harder for people to come, and even harder for them to stay, even if they are likely to face serious danger back home.

Biden’s order is unequivocally awful, but it’s not all that surprising. What’s more surprising is the eagerness of certain people in my profession to buy into the language and logic of this shadow-ban on asylum, and in particular to casually use the term “loophole” to describe what asylum claims have become. The word has turned up in headlines; it’s also been invoked by columnists like Nick Kristof (who claims to otherwise support refugees.) Molly O’Toole, an excellent immigration reporter, called this tendency out as “irresponsible.” Trust her—she won a Pulitzer!

I’m not a language purist by any stretch—I appreciate that the usage and meaning of words can change (I draw a hard line at “impactful.”) But I have thought a lot about loopholes and immigration and the logic that makes the nation-state system function, and to describe asylum as a loophole is missing the point.

It is true that “loophole” is a slippery term, much like its cousin, the legal fiction. But this is intentional: the ambiguity speaks to the essence of the term itself. The whole point of a loophole is that it seems like it shouldn’t exist, but does. Usually, the loopholes carries with it the whiff—however faint—of corruption: closer to “not illegal” than to “perfectly legal”. And yet it is legal, at least for the moment.

The loophole appeals to our sense of justice: no matter how permissible it is, it does not feel entirely fair.

A super-egregious loophole might look like this: an exemption for companies with exactly 3,582 employees and 23 contractors plus one (1) office cat from having to offer health insurance to their workers. (To be clear, I made this one up.) Could there hypothetically be many, many companies with this exact human and non-human headcount? Sure—in theory. But a loophole can be written to look as though it’s fair to all, when in fact, it plays favorites.

Most loopholes aren’t this glaring. They look more like the carried-interest loophole, that allows hedge fund executives to treat their income as capital gains rather than ordinary income, which is taxed at a lower rate. Carried interest is hated by many, yet lives on and on. That’s all thanks to aggressive lobbying.

It’s useful to keep these “maximum” loopholes in our minds when we think through what is not a loophole. In New York City, owners of expensive houses often pay less in property tax than people living in smaller co-ops or condos. This might look like a loophole conceived to benefit the rich, and in practice, that is overwhelmingly how it now functions. However, this particular rule was intended protect homeowners whose incomes did not keep up with rising real estate prices.

Has the tax become corrupted by the passing of time? Absolutely. Has it become akin to a loophole? One hundred percent. But was it conceived as such, with the intention to evade and elide? Not quite.

My unprofessional verdict? Not a loophole per se—but a hole nonetheless, and one that should be quickly re-sealed.

So here’s where these real and imagined examples leave us. Loopholes are technically legal: either inscribed in, or conveniently omitted from, the rules. They follow the letter but not the spirit of the law, and usually for the benefit of rich men knocking at the gates of havens.

If we are to keep speaking Biblically, loopholes are needles for camels. They respond to contingencies, but are animated by something a little more absurd. Observed in action, loopholes thus elicit a unique emotional response: you aren’t sure whether to laugh or cry. (This is my baseline emotional state: an occupational hazard.)

Finally, intention matters: often, the key to determining what is and isn’t a loophole is to look at where it came from.

“Loophole” is a weird word: a sort of double-positive, and visually, almost tautological (I am thinking again of a thread, a needle—and a camel.) Etymologically, the term is curious, too. In the olden days, a loop-hole was a slit in the wall of a fort or a castle that allowed soldiers to shoot their arrows out of the fortification while shielding themselves from the enemy’s artillery.

This, I think, should be part of how we understand the loophole as a concept, especially in the context of immigration today. Because if we are thinking about a state, and the walls around it, and following the logic of the politicians who talk endlessly about migrant “invasions”, then both the architects and beneficiaries of the loopholes are not the people outside the gates, but those within.

Could a crack shot with a bow and arrow hypothetically slip one through? Yes, hypothetically. But the loop-holes are part of the castle wall: a wall designed to keep people away.

A loophole, then, is not a lifeline, or indeed, a means to asylum. It’s quite the opposite.

It’s worth remembering that it is exceedingly difficult to immigrate to the United States, even—especially!—if you are an asylum-seeker who has made it past a border checkpoint. Most asylum claims fail. Those that succeed are the result of months, even years of bureaucratic and legal wrangling. It’s costly, stressful, and time-consuming. There are no guarantees.

The whole point of a loophole is that it makes things easy, or easier: a kind of hack. If asylum were actually a loophole to living in the U.S, what does it tell us that it’s still so goddamn hard?

What it tells me is that calling asylum a “loophole” is just another way to stigmatize and delegitimize migrations: for now, the migrations of the poor, but before long, everyone else’s as well.

Because if asylum is a “loophole”, then so are all visas—fiancé visas, artist visas, CEO visas, guest-worker visas. There are few ways pathways into a fortress this dead-set on keeping people out. And there’s no shortage of arrows shooting out.