Immigration has become one of the most controversial legal and policy issues on the national agenda, especially since Donald Trump won the presidency on a highly restrictionist platform and began to implement his anti-immigration agenda, seeking to drastically reduce both legal and illegal migration.

Legal debates over immigration have also flourished, such as the recent litigation over Trump’s travel ban order, which the Supreme Court narrowly upheld against claims that it was the result of unconstitutional discrimination on the basis of religion. But few have even considered the possibility that the federal government lacks a general power to restrict immigration to begin with. If such power is absent, many federal immigration restrictions are unconstitutional regardless of whether they might violate individual rights.

And absent it is. If you peruse the list of federal powers in Articles I and II of the Constitution, a general power to restrict immigration is notable by its absence. It just simply is not there. That is not because the Framers only included a small number of very important powers and then left the rest to implication. To the contrary, Article I contains a long and detailed list of congressional powers, including comparatively minor ones, such as the authority to establish “post roads” and “fix the Standards of Weights and Measures.” If the Framers had wanted to give the federal government so massively important a power as the authority to ban immigration, one would think they would have clearly said so.

Legal theorists have developed a vast cottage industry of arguments claiming that the power over immigration can be implied from other authorities given the federal government, or that it is somehow present without being enumerated at all. But these efforts are ultimately unavailing.

The text and the original meaning of the Constitution undercut the notion that the federal government has general authority to restrict immigration, in the sense of having the power to forbid movement to the United States simply on the basis that a would-be immigrant was born abroad and is not a U.S. citizen. The doctrine that Congress has broad “plenary” power over immigration is long established and – today – rarely questioned. But it is actually an emperor walking around without clothes, or at least far more scantily clad than most assume.

Congress’ other powers do enable it to forbid some types of migration in some cases. For example, its authority to declare war, provide for the common defense, and define and punish offenses against international law, gives it the authority to forbid the movement of enemy soldiers, spies, terrorists, and pirates, among others. But it does not have any general power to forbid migration.

The idea that the federal government lacks general power over immigration seems radical today. But it was actually the dominant view during the Founding era and for many years thereafter. James Madison, the “Father of the Constitution,” and Thomas Jefferson were among its many exponents.

In the Virginia Resolution against the Alien and Sedition Acts of 1798, drafted on behalf of the Virginia state legislature, James Madison argued that the Alien Friends Act (which gave the president the power to deport aliens that he “shall judge dangerous to the peace and safety of the United States,” as well as any suspected of “treasonable or secret machinations against the government.”)[1] “exercises a power no where delegated to the federal government.”[2] Thomas Jefferson adopted much the same position in his October 1798 draft of the Kentucky Resolution, which stated that “ALIEN-friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the US. nor prohibited to the individual states distinct from their power over citizens.”[3]

That the Founding Fathers did not give the federal government the power to ban immigration is not surprising. Most of them were strongly committed to a policy of free immigration in order to increase the population and well-being of the new nation.

In this essay, I briefly critique standard arguments for the existence of general federal power over immigration, despite the lack of a specific textual grant of such authority. I focus on arguments based on text and original meaning, rather than “living constitution” theory. The latter must be left for another day. Many of those who today most strongly support broad federal power over immigration consider themselves to be constitutional originalists and argue for relatively narrow interpretations of federal authority in most other areas. In this essay, I suggest that the same approach they apply in other areas also undercuts general federal power over immigration.

I also consider only the scope of federal authority, and do not delve into the issue of state power over immigration. But if we were to limit federal power to its original scope, states would likely end up with greater authority in this area than they have under current Supreme Court precedent.

In the short run, the constitutional case against federal immigration restrictions is unlikely to lead either the Supreme Court or the other branches of government to cut back on longstanding precedent and begin constraining federal power in this field. But greater consideration of this constitutional question might lead to a reevaluation of the legitimacy of current immigration restrictions, and to the imposition of tighter constraints on federal power in this field, even if it is never pared back to its originally intended scope.

The Commerce Clause

From a modern standpoint, the most obvious basis for congressional authority over immigration is the Commerce Clause, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Modern Supreme Court precedent interprets the Clause to give Congress broad power to regulate virtually any “economic activity” and even most noneconomic activities that might in some way affect interstate or international commerce. Under this theory, Congress clearly has broad authority to forbid immigration. Even if immigration does not qualify as “economic activity,” it has a major effect on both international and interstate commerce.

But at the time of the Founding and for many decades thereafter, the dominant interpretation of the Commerce Clause was that it merely gave Congress the power to restrict interstate trade and other commercial transactions, not to forbid movement as such.[4] The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. The Constitution literally uses the same phrase to cover both, giving Congress the power to “regulate Commerce with foreign Nations, and among the several States.” Yet few if any eighteenth and nineteenth century jurists would have argued that Congress therefore had the power to forbid Americans from moving from one state to another.

The Naturalization Clause

The congressional power most closely related to immigration is the Naturalization Clause, which gives Congress the power to “establish an Uniform Rule of Naturalization.” As recently as 2012, the Supreme Court avowed that federal power over immigration “rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization.’”[5] Nonetheless, the power to determine eligibility for naturalization is obviously not the same thing as a power to forbid immigration.

In the eighteenth century, as today, many people resided in the United States without being citizens. Conversely, some American citizens resided abroad, and Congress could and did grant citizenship to persons who had never been in the United States at all, such as the foreign-born children of American citizens. The initial debate over the Naturalization Act of 1790 – the first congressional legislation on this issue – indicates that members of Congress clearly recognized that foreigners might reside in the United States for years before becoming eligible for citizenship.[6]

James Madison, then a member of the House of Representatives, wanted a naturalization law that “should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours.”[7] At the same time, he did not want a naturalization law so liberal that aliens might “might acquire the right of citizenship, and return to the country from which they came, and evade the laws intended to encourage the commerce and industry of the real citizens and inhabitants of America, enjoying at the same time all the advantages of citizens and aliens.”[8] Madison thereby recognized that citizens might potentially reside abroad, whereas noncitizens could migrate to the United States even without the right to naturalization. But neither he nor other participants in the debate suggested that the Naturalization Clause gives Congress the power to actually bar the entry of aliens.

The Necessary and Proper Clause

Some otherwise unenumerated federal powers are clearly granted to Congress by the Necessary and Proper Clause, which gives it the power to “make all Laws which shall be necessary and proper for carrying into Execution ” other constitutional powers of the federal government. In the famous 1819 case of McCulloch v. Maryland, the Supreme Court ruled that the term “necessary” must be interpreted broadly to cover any legislation that might be “useful” or “convenient” for implementing other powers.[9] This view – notably defended by Alexander Hamilton in the 1790s – was at odds with the more restrictive interpretations of “necessary” defended by James Madison and Thomas Jefferson, among others.

Under the expansive definition of “necessary” advocated by Hamilton and ultimately endorsed by the Supreme Court, a power to restrict immigration could easily be justified as a “useful” or “convenient” tool for implementing numerous other powers.

But while the Founders disagreed about the meaning of “necessary,” there was widespread agreement that the word “proper” represented an independent constraint on the powers granted by the Clause, and that it, at the very least, prevented Congress from assuming virtually unlimited power or from claiming a great and independent power not otherwise granted by the Constitution.[10] Even Alexander Hamilton, one of the strongest supporters of federal power among the framers, wrote in Federalist 33 that we must “judge of the necessity and propriety of the laws to be passed for executing the powers of the Union,”[11] thereby recognizing that “necessity” and “propriety” are two separate requirements.

Chief Justice Marshall’s Supreme Court opinion in McCulloch v. Maryland distinguished between powers “incidental” to the implementation of other federal powers, which the Clause gives to Congress, and “great substantive and independent power[s],” which it does not.[12] This approach to the interpretation of “proper” was recently adopted by Chief Justice John Roberts in his decisive opinion in NFIB v. Sebelius, the cases assessing the constitutionality of the individual health insurance mandate included in the 2010 Affordable Care Act. Roberts concluded that the individual mandate was “necessary,” but not “proper.” If a requirement to purchase a product qualifies as a “great” and “independent” power, then so too does a general power to exclude immigrants, which is surely a major form of federal authority, if anything is. The power to exclude migrants affects the welfare and freedom of millions of people, both immigrants and natives, arguably much more so than the power to mandate the purchase of a product.

The Migration or Importation Clause

The Migration or Importation Clause of the Constitution states that “[t]he 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.” In and of itself, the Clause does not grant Congress any additional powers. To the contrary, it is a limitation on power. But it is sometimes argued that the limitation on congressional power to prohibit “migration or importation” of persons until 1808 implies that Congress had such a power to begin with. The word “migration” suggests that that power extended to the prohibition of voluntary immigration, as well as the importation of slaves (the principal focus of the Clause). Most likely, however, the inclusion of the term “migration” was not meant to imply a general federal power to restrict migration, but was a euphemism intended to bolster the pretense that the Constitution did not endorse slavery. As John Jay – the first Chief Justice of the Supreme Court, and coauthor of the Federalist Papers - pointed out in an 1819 letter discussing the Clause:

It will, I presume, be admitted that slaves were the persons intended. The word slaves was avoided, probably on account of the existing toleration of slavery and of its discordance with the principles of the Revolution, and from a consciousness of its being repugnant to the following positions in the Declaration of Independence, viz.: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness.’”[13]

James Madison similarly argued that the Clause was intended to protect the slave trade against limitation prior to 1808, and that its phrasing was due to “scruples against admitting the term ‘slaves’ into the Instrument.”[14] In Federalist 42, Madison decried “[a]ttempts [that] have been made to pervert this clause into an objection against the Constitution, by representing it…as calculated to prevent voluntary and beneficial emigrations from Europe to America.”[15]

Even if the Clause does imply a power to limit the “migration” of some voluntary arrivals, it does not follow that Congress was assumed to have a general power to forbid immigration. In addition to the importation of slaves, indentured servants were also commonly brought into the country during the colonial era and the early republic. Unlike slaves, indentured servants came of their own free will, and therefore might not be described merely as objects of “importation.” But their passage was paid for by employers in America, and the indentured servants were thereafter required to work for them for several years to pay off their debt. Indeed, eighteenth century Americans often did consider indentured servants to be “articles of commerce,” and therefore within the scope of the commerce power, even though their migration was voluntary.[16]

The Power to Define and Punish Offences against the Law of Nations

A few scholars have argued that Congress has a general power to exclude immigrants by virtue of its authority to “define and punish…Offences against the Law of Nations.” As they point out, eighteenth century understandings of the law of nations generally assumed that each state has the authority to restrict the entry of aliens, largely as it sees fit, which in their view means that the Define and Punish Clause gives Congress the power to exclude immigrants.[17] But the fact that international law recognized the exclusion of aliens as a power of sovereign states does not mean that a violation of a national law restricting migration is thereby a violation of the law of nations.

In the eighteenth century, and even today, international law recognizes exclusive state authority to make laws on a wide variety of subjects. That does not mean that any violation of national laws on those issues becomes a violation of international law. For example, states generally have exclusive authority over domestic violent crime. Yet that does not make every act of rape and murder a violation of international law, even if committed by an alien on the state’s territory.

Inherent Congressional Power

Even if Congress does not have an enumerated power to restrict immigration, perhaps that authority is somehow inherent in the structure of the Constitution or in the very nature of government. That was in fact the basis on which the Supreme Court upheld the Chinese Exclusion Act in 1889, in the case that first established plenary congressional power over immigration. The Court ruled that the power to “exclude aliens from its territory… is an incident of every independent nation” and therefore an “incident of sovereignty belonging to the government of the United States.”[18]

But Article I of the Constitution explicitly enumerates several powers that are much more clearly essential to the very existence of government than immigration restrictions are. For example, it enumerates the power to declare war and the power spend money to provide for “the common Defence.” If any powers are inherent in the structure of the Constitution or the very nature of government, it is these. Similarly, if the Constitution presumes such an inherent power to restrict migration, surely there is an equally inherent power to control naturalization. It is difficult to imagine a reason why Congress would have inherent power over immigration, yet not over naturalization. Yet Article I includes an explicit grant of the power to establish a “uniform Rule of Naturalization.”

Moreover, by the time the Court ruled in favor of the inherent power theory in 1889, the United States had successfully existed as an independent nation for many decades without exercising a general federal power to exclude immigrants. That strongly suggests that there is no inherent need for such authority, and that the nation could continue to function without it. If far more fundamental aspects of sovereignty had to be enumerated in the Constitution before they could be granted to the federal government, the same is true of the power to forbid immigration.

Even in the absence of a general power, Congress can still restrict the entry of some foreigners by using its other enumerated powers. For example, the power to declare war and to spend money for the “common defence” includes a power to forcibly restrict entry by enemy spies, terrorists, and soldiers. The power to “define and punish” offenses against “the law of nations” presumably allows Congress to restrict the movement of pirates and other violators of international law. But there is no general enumerated power giving Congress the authority to exclude migrants simply because they are foreign nationals or were born outside the United States.

Inherent Executive Power

Like Congress, the President has no enumerated power to restrict immigration. However, some have suggested that he might have inherent executive authority to restrict the entry of foreigners into the United States. Article II of the Constitution gives all “executive” power to the president. This wording presumably gives the president the authority to wield any power that is inherent to the nature of the “executive.” Perhaps that concept includes power over immigration.

As legal scholar Michael Ramsey points out, “the traditional eighteenth century executive – notably the English monarch – had the power to decide when to admit aliens to the realm as part of the executive power over foreign affairs.”[19] But even if this theory correctly describes the powers of the king of England and other European monarchs, it does not follow that early Americans agreed with this view. To the contrary, many denied that the king had any such authority. The Declaration of Independence claimed that George III had exceeded his rightful authority when he “endeavored to prevent the population of these states” by preventing “foreigners” from migrating to the colonies.

When the Alien Acts of 1798 gave the president the power to exclude “all such aliens as he shall judge dangerous to the peace and safety of the United States,” and those suspected of “treasonable or secret machinations against the government,”[20] James Madison and others denied that any such power was granted to the president or any other agent of the federal government, and their view was the dominant reaction to the Act.

Just as Congress did not automatically possess the standard powers of other contemporary legislatures, it is dangerous to assume that the president necessarily had inherent powers similar to those of other contemporary executives. In both cases, such an assumption would render many of their enumerated powers superfluous. For example, eighteenth century monarchs generally possessed inherent authority to command the armed forces and receive foreign ambassadors. Yet both of these powers are specifically enumerated in the case of the president. The same goes for the power to issue pardons, which was also a standard prerogative of monarchs, and was nonetheless also specifically enumerated in the Constitution.

Prospects for Change

It is unlikely that longstanding precedents giving the federal government broad power over immigration will be overruled in the near future. And there are legitimate differences of opinion on the issue of whether and to what extent long-established but wrong precedents even should be overruled.

But there are still incremental steps the judiciary can take to curb the exercise of unconstitutional federal power in this field. For example, courts could scrutinize new immigration restrictions with greater skepticism than previous ones. New restrictions are not supported by the same sort of long-standing reliance interests as past constraints might be.

Even if the Supreme Court never overturns or significantly narrows the structural scope of federal power over immigration, recognition of the dubious basis of federal power in this area should at least lead it to apply the same individual-rights limits in this field as apply to other exercises of federal power that have a stronger foundation in the text and original meaning. That would require cutting back on decisions such as the travel ban ruling in Trump v. Hawaii that give special deference to the president and Congress when it comes to infringements on individual rights arising from immigration policy.[21] It makes little sense to give the federal government special deference when it exercises powers whose justifications are dubious to begin with.

The struggle to roll back federal power in this area is likely to be a long and difficult one. As with the Civil Rights Movement and other efforts to strengthen constitutional protection for poor, politically weak, and often unpopular minorities, this one is likely to require political mobilization as well as purely legal argument. In this essay, I cannot even attempt to describe how such a movement might work. But I hope to reopen the conversation on the constitutional issues at stake. Even if we cannot yet overthrow this naked emperor, we should at least begin to question his legitimacy.

Notes

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[1] Alien Friends Act, ch. 58, 1 Stat. 570, 571, § 1 (1798).

[2] Virginia Resolutions of 1798, Gen. Assemb. (Va., Dec. 24, 1798).

[3] Thomas Jefferson, Draft of Kentucky Resolution, Oct. 4, 1798. The Papers of Thomas Jefferson, vol. 30, 536 (2003).. The final version of the Kentucky Resolution did not include this language, though it did condemn the Alien Act as unconstitutional. Kentucky Resolution (Gen. Assembly, Dec. 3, 1798).

[4] See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 University of Chicago Law Review 101 (2001).

[5] Arizona v. United States, 567 U.S. 387, 394 (2012) (quoting id.).

[6] See 1 Annals of Congress: The Debates and Proceedings in the Congress of the United States 1109-25 (Washington DC: Gales & Seaton, 1834-56).

[7] Id. at 1118 (statement of Rep. James Madison).

[8] Id.

[9] McCulloch v. Maryland, 17 U.S. 316, 413-15 (1819).

[10] For more detailed discussion, see Ilya Somin, The Individual Mandate and the ‘Proper Meaning of Proper,’” in The Health Care Case: The Supreme Court’s Decision and its Implications (Nathaniel Persily, et al. eds., New York: Oxford University Press 2013); Gary Lawson, et al., The Origins of the Necessary and Proper Clause (Cambridge: Cambridge University Press 2010); and Gary Lawson & Patricia Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 267 (1993).

[11] The Federalist No. 33 (Alexander Hamilton).

[12] McCulloch, 17 U.S. at 411, 421.

[13] The Founders Constitution vol. 3, 296 (Philip Kurland & Ralph Lerner eds. Chicago: University of Chicago Press, 1987) (John Jay to Elias Boudinot, Nov. 17, 1819).

[14] Id. at 298 (James Madison to Robert Walsh, Nov. 27, 1819).

[15] The Federalist No. 42 (James Madison).

[16] See Mary Sarah Bilder, The Struggle Over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Missouri. Law Review 743 (1996).

[17] For examples of this sort of argument, see, e.g., Patrick J. Charles, The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: An Historical Perspective, 15 Tex. Review of Law and Policy 61, 103-105 (2010) and Robert Natelson, The Original Constitution: What it Actually Said and Meant 123-24 (3d ed. 2014).

[18] Chae Chan Ping v. United States, 130 U.S. 581, 603, 609 (1889).

[19] Ramsey, The Constitution’s Text and Foreign Affairs 208 (2007).

[20] Alien Friends Act, ch. 58, 1 Stat. 570, 571, § 1 (1798).

[21] I criticized the idea of special deference on immigration policy in greater detail in Michael Z. Mannheimer and Ilya Somin, The Bill of Rights is the Best Defense Against a Travel Ban, The Hill, Apr. 24, 2018, available at http://thehill.com/opinion/civil-rights/384457-the-bill-of-rights-is-th….

Whether the federal government has the power to regulate immigration is an exceptionally important question. In City of Richmond v. J.A. Croson Co., Justice Scalia proposed that “racial discrimination against any group finds a more ready expression at the state and local than at the federal level”; if true, immigration policy is the glaring exception. Throughout American history, immigration law has been the location of perhaps the most egregious forms of discrimination by the federal government. From racial restrictions on naturalization in effect from 1790 to 1952, to laws excluding immigrants on the basis of race, gender, religion, political beliefs, and sexual orientation,[1] to extra-judicial expulsion of U.S. citizens and others on the basis of race,[2] U.S. immigration policy has often been inhumane and dishonorable. I am among those who believe that contemporary immigration policy remains driven by invidious considerations.

But there is no Brown v. Board of Education of immigration law, breaking with the past and announcing a new jurisprudence. Instead, to a significant degree, discrimination has been tolerated by courts based on the shifting, inconsistent, and vague explanations of executive and congressional power Professor Somin described. The courts have said that “Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens,” and therefore that “in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”

Notwithstanding its recognition of the federal government’s limited powers, the Supreme Court has made no rigorous, consistent effort to explain precisely where immigration authority comes from or how far it extends. Professor Somin is absolutely right that once that power—if any—is identified, it will become necessary to determine the extent to which that power is subject to the Bill of Rights and other constitutional restraint, and therefore which provisions of the Immigration and Nationality Act are unconstitutional.

Professor Somin also persuasively argues that the most promising source of textual authority, the Migration Clause, is insufficient. The unavoidable historical context is that this was a disguised reference to the slave trade, not to immigration in general. In addition, there is little question that the form of human trafficking practiced at the time, odious as it was, constituted commerce subject to federal regulation.[3] If voluntary immigration also constitutes commerce, this clause becomes unnecessary to give Congress power to regulate it. If on the other hand voluntary immigration does not constitute commerce, then this clause, which, again, deals with commerce, might well be inapposite.

The question in my mind becomes whether the congressional power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes” authorizes regulation of immigration. My tentative answer is that a Commerce Clause justification has not yet been disproven. Professor Somin points out that the Clause

merely gave Congress the power to restrict interstate trade and other commercial transactions, not to forbid movement as such. The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. The Constitution literally uses the same phrase to cover both, giving Congress the power to “regulate Commerce with foreign Nations, and among the several States.” Yet few if any eighteenth and nineteenth century jurists would have argued that Congress therefore had the power to forbid Americans from moving from one state to another.

First, a practical problem. If immigration is not federally regulated, it is either subject to state regulation,[4] which implies border checkpoints for all (as, say, Arizona exercises its right to keep out immigrants that California has decided to admit) or no regulation whatsoever, an eyebrow-raising prospect.

More fundamentally, the law offers a way out of the dilemma: “Commerce” definitionally might include migration across the border of a state or of the United States, but U.S. citizens might have the right to cross state borders without federal (or state) restriction based on other provisions of the Constitution.[5] Although Chief Justice Roger Taney is best remembered for being wrong, he was correct when he wrote that every citizen of the United States, “from the most remote States or Territories” is entitled to access to federal courts and offices in every state,

And the various provisions in the Constitution of the United States—such, for example, as the right to sue in a federal court sitting in another State, the right to pursue and reclaim one who has escaped from service, the equal privileges and immunities secured to citizens of other States, and the provision that vessels bound to or from one State to another shall not be obliged to enter and clear or pay duties—all prove that it intended to secure the freest intercourse between the citizens of the different States.[6]

Of course, rights granted by the Constitution to citizens are not necessarily enjoyed by noncitizens; that citizens may travel freely between the states does not mean that unnaturalized immigrants also have that liberty in the face of a federal prohibition.[7]

The ultimate issue is whether immigration is commerce. I do not claim comprehensive knowledge of the historical sources. However, venerable precedents certainly leave room for treatment of immigration as commerce. In Gibbons v. Ogden, an 1824 case, Chief Justice Marshall for a majority determined that the business of transportation of passengers by vessel was commerce.[8] It would be drawing a very fine line to hold that the federal government can regulate the business of transporting noncitizens by, say, imposing a $100,000 head tax, but not go so far as to forbid the actual entry of noncitizens.

In 1837, Justice Barbour for the Court held that New York could require ship masters to file passenger lists with local authorities, the Commerce Clause notwithstanding. Precedents limiting state regulation of interstate goods were inapplicable because “the goods are the subject of commerce, the persons are not.”[9] But in 1849, when the question was the power of states to tax immigrants from other countries, the Court, 5-4, concluded regulation of immigrants as such was commerce reserved to the national government.[10] Asking for information was one thing; taxing, which could result in exclusion, was another matter.

In sum, I would like to hear more from Professor Somin about why the Commerce Clause is an insufficient basis for federal regulation, and why specification of the Commerce Clause as the main source would be an insufficient foundation for beginning the project of subjecting federal immigration authority to ordinary constitutional limitation.

Notes

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[1] See generally Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998).

[2] See Kevin R. Johnson, The Forgotten “Repatriation” of Persons of Mexican Ancestry and Lessons for the “War on Terror”, 26 Pace L. Rev. 1 (2005).

[3] See Gibbons v. Ogden, 22 U.S. 1, 206-07 (1824) (Marshall C.J.) (reserved state right in the Migration Clause “constitutes an exception to the power of Congress to regulate commerce”); id. at 216-17. But see Smith v. Turner, 48 U.S. 283, 453 (1849) (McKinley J., concurring) (arguing that Migration Clause applies both to slaves and other classes of migrants).

[4] See Gerald Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833 (1993).

[5] See generally Jeffrey Kahn, International Travel and the Constitution, 56 UCLA L. Rev. 271 (2008).

[6] Smith v. Turner, 48 U.S. 283, 492 (1849) (Taney C.J., dissenting). Similarly, Professor Barnett identifies several constitutional provisions which “deny Congress the same degree of regulatory power over domestic commerce that it has over commerce with foreign nations.” Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 144 (2001).

[7] Cf. Nancy Morawetz, The Invisible Border: Restrictions on Short-Term Travel by Noncitizens, 21 Geo. Immigr. L.J. 201, 205 (2007) (“Restrictions on travel exist for noncitizens across situation and status.”)

[8] Gibbons v. Ogden, 22 U.S. 1, 215-16 (1824) (Marshall C.J.) (“A coasting vessel employed in the transportation of passengers, is as much a portion of the American marine, as one employed in the transportation of a cargo; and no reason is perceived why such vessel should be withdrawn from the regulating power of that government, which has been thought best fitted for the purpose generally.”)

[9] City of New York v. Miln, 36 U.S. 102, 136 (1837).

[10] There were eight opinions. Justice Wayne’s concurring opinion proposed:

I think the court means now to decide,—

1. That the acts of New York and Massachusetts imposing a tax upon passengers, either foreigners or citizens, coming into the ports in those States, either in foreign vessels or vessels of the United States, from foreign nations or from ports in the United States, are unconstitutional and void, being in their nature regulations of commerce contrary to the grant in the Constitution to Congress of the power to regulate commerce with foreign nations and among the several States.

Smith v. Turner, 48 U.S. 283, 412 (1849) (Wayne J., concurring).

Where in our constitutional system is the power to regulate immigration assigned? Professor Ilya Somin argues that the power to regulate immigration is not a power given to Congress because it is not enumerated. The Court has recognized three sources for such a power, two textual and one inherent. And I think it is correct on all scores.

First, there is the power over naturalization contained in Article I, Section 8. Granted, the power to “naturalize”—that is, to confer citizenship—is not the same thing as the power to regulate immigration. But the notion that the power to regulate immigration is not subsumed within the power of naturalization is an anachronistic view of the latter power that understands naturalization merely to confer citizenship and not as having anything to do with who can immigrate into this country in order to obtain citizenship. As James Pfander and Theresa Wardon correctly noted in a 2010 article published in the Virginia Law Review, the Framers “regarded the formation of naturalization rules as tantamount to the construction of an immigration policy for the new nation.” Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 Va. L. Rev. 359, 393 (2010).

The passage of time may have obscured the circumstances that made this obvious in 1787. When that clause was written, immigration and naturalization were largely synonymous because of a couple of facts that are no longer true. First, one did not cross the Atlantic in a number of hours; it was a three-month-long journey. Most people made the trip only once in a lifetime (though if you were a diplomat, you might have to make it several times). However, making that trip meant that you were relocating and taking on a new allegiance and becoming a member of a new body politic.

The second thing was property law. If you were not a naturalized citizen, you could not inherit property—and in many cases you could not even own property. And so, before you made the decision to immigrate, you had to know what the naturalization rules were. Giving Congress the power to naturalize—to determine who can become citizens and members of our body politic—necessarily encompassed the power to decide who could come here in order to put themselves up for that naturalization.

The second textual source for Congressional authority over immigration is the power given to Congress to regulate foreign commerce. In the Passenger Cases, decided in 1849, the Court (or rather, the Justices in their multiple opinions) held that states could not impose a head tax on passengers coming into their ports because that would intrude on Congress’s power to regulate foreign commerce, a power that included regulation of immigration of persons. The Court stated that engaging in the business of bringing passengers is an aspect of foreign commerce, and the notion that passenger travel is “commerce” was decided in Gibbons v. Ogden, so both cases would have to be overruled to sustain Somin’s argument that Congress has no power to regulate the transportation of people into the United States.

But what about immigration that does not involve “commerce”—which is to say, as Somin does, those who walk across the border rather than those who pay to be transported here? There is nobody engaged in the commerce of transporting those people other than the people themselves.

Now I’m about as stingy on the reading of what constitutes “commerce” as anyone, but even I accept the proposition that the power to regulate foreign commerce includes not just trade in goods but also intercourse with foreign nations more broadly—and that would necessarily include the movement of peoples. As Jack Balkin noted in a 2010 article in the Michigan Law Review, “Understanding ‘commerce’ in its original sense of ‘intercourse’ is consistent with all of the evidence offered by rival theories of commerce as trade or economic activity; but it better explains the source of Congress’s powers over immigration and foreign affairs.” People coming here to take up residence and engage in the economy would clearly have been viewed as part of the “intercourse” with foreign nations, fully within the power of Congress to “regulate Commerce with foreign Nations….”

Proof that this was the understanding of the naturalization and foreign commerce powers (or at least those powers as bolstered by the Necessary and Proper Clause) is found in the negative implication of the text of Article I, Section 9 of the United States Constitution, which specifically states: “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 [1808]….” What is the negative implication to be drawn from that restriction on Congress’s power? The negative implication is that Congress does have the power to restrict migration and importation, although it cannot exercise that power until 1808. This provision was aimed at slavery, as Somin quite correctly points out, but it says migration and importation, not just importation, and that additional word meant that the prohibition (and hence the implied power) applied more broadly than just to slavery. Somin’s recognition that the Convention deployed euphemisms to avoid explicitly mentioning slavery is misplaced, as the euphemism is in the phrase “such Persons,” not in the word “Migration.” As James Iredell, later a Justice on the Supreme Court, noted during the North Carolina ratifying convention, “[t]he word migration refers to free persons, but the word importation refers to slaves, because free persons cannot be said to be imported.” This point was also made expressly during the federal convention itself. As recorded in Madison’s notes of the convention, Gouverneur Morris indicated during debate on August 25, 1787 his view that the clause implied that the Legislature may tax freemen imported. Far from disabusing him of that notion, George Mason stated that “the provision as it stands was necessary for the case of Convicts in order to prevent the introduction of them.” The clause was then approved. In other words, the convention itself recognized that the Migration and Importation Clause was not limited to slavery.

More importantly for present purposes, the convention also recognized that the Clause implied that Congress did have power to restrict immigration.

In his oral argument before the Supreme Court in The Passenger Cases, Daniel Webster made the same point:

[The Clause] is a limitation upon the powers of Congress. Now, a limitation of a power admits the existence of the power limited. Congress, then, had by the Constitution, by the admission contained in this clause of it, power to prohibit the migration or importation of any persons other than citizens of the United States into the country …. If Congress had such power, whence did they derive it? What part of the Constitution gave it to them? They had power to collect and lay duties upon imports. They had power to regulate commerce with foreign nations, and they had all the powers necessarily belonging to a general national government, as it regards foreigners.

That last piece of Webster’s argument describes the third source of the federal government’s authority over immigration, namely that such a power is inherent in the very nature of sovereignty. The Supreme Court would later elaborate on this point when, in the Chinese Exclusion Cases, it recognized that Congress has inherent power over immigration, a power that is essential to and an incident of sovereignty. But the idea that the power over immigration was inherent in sovereignty did not originate with the Chinese Exclusion Cases. It was also present in the Passenger Cases forty years earlier. The Court held that the power to grant ingress and egress to and from its territory belongs to every sovereign, and cited Vattel, among others, for that proposition.

The states are also sovereigns, of course, but not with respect to foreign affairs. As James Madison explained in Federalist No. 32, for example, the Constitution left to the states issues that are of local concern but assigned to the national government all of the powers that are inherent in the definition or understanding of a national sovereignty. It would have been bizarre not to have recognized the power to regulate immigration as a power of the national government because control of one’s borders was such a critical and core aspect of sovereignty.

What does it mean to have sovereignty? The Declaration of Independence gives us some guidance on that question. It begins: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another.” After that opening statement, the drafters set out the propositions that legitimized their claim of right to renounce their former allegiance.

The Declaration’s “one people” language recognizes that even though all of humanity has fundamental, inalienable human rights, in order to secure those rights, peoples form discrete societies. These groups are most often defined geographically, and they each decide how to best institute a government to protect their inalienable rights. That process requires recognition of a group of people that stands distinct from other groups. All such groups have the same natural right to create their own government and to defend their own inalienable rights as we have. But a right to preserve geographic borders is inherent in the understanding of how “peoples” protect their rights. Boundaries serve to protect and secure the blessings of liberty and posterity for a nation’s people.

If we are going to accept that proposition at all, then we have to recognize that we must make a policy determination on how large our welcome mat should be for immigration. The only way to avoid that determination is to claim that there ought to be no distinction between citizen and noncitizen, no ability to control the volume of people that come at any given time, no borders, and hence no sovereignty. The Founders clearly did not have such an open-borders mentality.

To be sure, virtually no cases dealt with immigration restrictions for the first century of America’s history, because the country needed to populate its vast territory. In fact, the policy judgment at the time of the founding and for many years thereafter was to encourage immigration by as many individuals as possible in order “to people the Western lands.” Immigration was necessary for the successful expansion of American society but also for defense purposes. If the new nation had not shored up its western lands and other borders, the country would not have survived its early years. It is thus not surprising that there are not see cases dealing with restrictions on immigration in the early years of the new republic. The lack of case law, however, does not suggest that the Founders and early lawmakers did not recognize that Congress had a power to control immigration when, in its judgment, circumstances required a different policy.

In fact, the Founders recognized that when considering restrictions on immigration, it is important to focus on what is necessary to protect the people here. That even means that Congress can make distinctions between different parts of the world from which immigration is allowed, if it deems it good policy. Quite simply, immigrants from parts of the world where despotism was the rule were viewed as more problematic because such individuals, habituated to un-republican forms of government, would tend to bring their despotic tendencies and habits to the United States. These were the kinds of concerns that were expressed, for example, briefly at the Federal Convention and in the early Naturalization Acts in Congress.

That is why, when it confronted these issues a century after America’s founding, the Supreme Court concluded that immigration restrictions are inherent in sovereignty. Moreover, the Court recognized that this kind of policy judgment is best crafted by the political branches, not by judicial interposition. The Court thus recognized that Congress has, under the Constitution, almost unfettered plenary authority to make such judgments. The kinds of arguments that Somin makes, therefore, are more properly submitted to Congress, not to the courts. If you think lawmakers got the policy judgment wrong, then argue for a change in the law, because what the proper immigration policy should be is inherently a political decision that the legislative branch is entitled to make.

I, for one, do not think Congress has the mix right at the moment, and certainly believe that much of the existing impediments and red tape to get through the process are unnecessary. But it is Congress that has to make the decision on where to draw the line regarding how much immigration can be absorbed at any given time without detrimental consequences for the existing citizenry. Otherwise we will destroy not only the notion of boundaries but also the notion of sovereignty itself, and that seems counter to the very principles of the Declaration of Independence that we ought not to break.

Note

A prior version of this article was previously at John C. Eastman, “The Power to Control Immigration Is A Core Aspect Of Sovereignty,”Harvard Journal of Law & Public Policy Volume 40, Number 1 (2016): Pp. 9-15. Reprinted with permission.

I would like to thank Professor Chin for his thoughtful comments on my essay. I agree with both of his major points: that federal immigration policy has often involved racial and ethnic discrimination that would be clearly unconstitutional in other contexts, and that I should provide a more detailed explanation for why the Commerce Clause does not give the federal government any general power over immigration.

Racism, Discrimination and the Immigration Restrictions

There can be no doubt that the history of American immigration restrictions is heavily tainted by racial and ethnic prejudice. Professor Chin is himself one of the leading scholars to have chronicled this sad record.[1] Racial motivations were at the root of the 1882 Chinese Exclusion Act, whose upholding by the Supreme Court in 1889 first established the idea that Congress has a general “plenary” power to restrict immigration. The Supreme Court’s decision itself reflects that racism, in its references to the claimed need to exclude “the presence of foreigners of a different race in this country, who will not assimilate with us,” and assertions that “the differences of race” were a major factor in the threat supposedly posed by Chinese immigrants.[2] The role of racism in the origin of the plenary power doctrine does not by itself prove that the doctrine is wrong. But it should at least diminish the respect accorded to the Chinese Exclusion Cases and other similar precedents from the same period. Relative to precedents less tainted by racist motivations, these cases should be judged more by the (weak) quality of their reasoning, and less by precedential value alone.

I also agree with Professor Chin that the courts have often allowed immigration restrictions to be influenced by criteria such as race or religion that would be forbidden in almost any other context. The Supreme Court’s recent decision in the travel ban case is a dramatic example. The majority upheld the President’s policy excluding nearly all entry into the United States by citizens of several Muslim-majority nations, despite overwhelming evidence that the true motive for the exclusion was not national security, but religious bias, openly proclaimed by the president himself.[3] The majority’s reasoning was based on the notion that immigration policy is a special case where the government deserves far greater deference than applies elsewhere.

Even if it is impossible or undesirable to reverse the Supreme Court’s precedents giving the federal government a general power to restrict immigration, the courts should at least subject the exercise of that power to the same constitutional constraints that apply to every other type of federal power – including those much more firmly rooted in the text and original meaning of the Constitution. If, for example, the federal government is not allowed to discriminate on the basis of race or religion when it exercises its undeniable power to regulate interstate commerce, the same should apply to any power it has to restrict immigration.

Professor Chin’s research suggests that the early “plenary power” precedents permitting what we would now consider otherwise unconstitutional discrimination in immigration policy were largely in line with dominant jurisprudence on domestic discrimination during the same era.[4] For instance, the same Supreme Court that allowed anti-Chinese discrimination in immigration policy also decided Plessy v. Ferguson, upholding domestic racial segregation, just a few years later. At the very least the Supreme Court should restore this kind of parity, this time by cracking down on unconstitutional discrimination in immigration policy rather than by permitting it in other areas.

More on Immigration and the Commerce Clause

In the latter part of his reply, Professor Chin rightly suggests that I need to provide a more thorough explanation of why the text and original meaning of the Commerce Clause do not give Congress a general power to restrict immigration. As I pointed out in my lead essay, the dominant view during the Founding era and for a long time thereafter was that the power to regulate interstate and foreign commerce extended to regulating trade in “articles of commerce,” such as various goods. It did not cover mere movement of persons, except in cases where the people in question were specifically engaged in commercial transactions.

As Representative Albert Gallatin, the leading Democratic-Republican spokesman in the debate over the Alien Act of 1798 who later served as Secretary of the Treasury under Thomas Jefferson and was one of the most influential constitutional interpreters among the Republicans, argued that the Commerce Clause could not justify the Act because congressional power under the Clause could only cover “the persons of alien merchants” and “must [be] related to them as merchants—to their professions, not to their existence as men.”[5] He, like Jefferson and Madison (quoted in my lead essay), denied that the Constitution gives Congress any “general authority over aliens.”[6]

It is true, as Professor Chin points out, that Chief Justice John Marshall, in Gibbons v. Ogden (1824), ruled that the power to regulate commerce included a power to regulate commercial passenger vessels. But that is not the same thing as a power to exclude immigration into the United States by aliens, any more than the power to regulate the business of interstate transportation includes a power to forbid interstate migration.

In theory, Congress could use the power to regulate shipping to forbid any vessel to transport aliens into the United States. But that would be leveraging one power to usurp another one not entrusted to the federal government. And it would run afoul of Marshall’s famous stricture, in McCulloch v. Maryland (1819), to the effect that, “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land.”[7] While the line between a pretextual use of power and a legitimate one was admittedly fuzzy, using the power to regulate commerce to claim a general power to restrict immigration seems clearly on the pretextual side of the line.

After all, similar reasoning could be adopted to leverage Congress’ power over interstate commerce into a general power to restrict the migration of Americans from state to state. They too could be barred from travelling from one jurisdiction to another by using ships, stagecoaches, horses, or other modes of commercial transportation. Few if any at the time of the Founding believed that Congress had such broad power to restrict interstate migration under the Commerce power. And if the Foreign Commerce Clause gave Congress a power to bar immigration by foreigners, then the Interstate Commerce Clause gave it the power to bar interstate movement by Americans, since the two literally use the exact same word. Both appear in the Article I Section 8, Clause 3 of the Constitution, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” There is no way the Constitution could have been ratified had it been understood as creating such broad federal power over internal movement.

Professor Chin also cites the 1849 Passenger Cases,[8] in which a deeply divided 5-4 Court struck down several state laws that imposed various kinds of taxes on passengers arriving in port from abroad, as an unconstitutional state infringement on Congress’ power to regulate commerce. This was a complex decision with multiple concurring and dissenting opinions. But it did not endorse anything approaching a general federal power to exclude migrants under the Commerce Clause. Even the justices in the majority did not go so far. Rather, they emphasized that these state policies usurped congressional authority because, as Justice McLean put it in a concurring opinion, they involved “the regulation of the transportation of passengers [which is] a part of commerce.”[9] McLean drew a distinction between “the transportation of merchandise and passengers,” which could be regulated by Congress under the commerce power, and the status of former passengers after they “leave the ship, and mingle with the citizens of the state,” at which point they are outside the scope of congressional control.[10]

In summarizing the views of four of the five members of the majority, Justice Wayne emphasized that states infringe congressional power if they seek to regulate “navigation,” but not if they seek to regulate or even exclude migrants “after they have been landed.”[11] On this theory, the Constitution gives Congress exclusive power to regulate transportation of passengers on the high seas, but only the states had general authority to exclude foreigners from entry and residence.

Unlike McLean, who believed that states could not exclude any migrants whom Congress wished to allow in,[12] except for paupers and carriers of contagious diseases, Wayne argued only that states could not exclude migrants in cases where doing so might interfere with Congress’ exercise of its other powers. For example, it could not exclude those whom Congress wished to permit to enter for “purposes of trade,” nor those whom it wished to make U.S. citizens by naturalization.[13] On this theory, the Commerce Clause did not give Congress any power over the entry of persons whose purpose was to immigrate or to visit for noncommercial purposes. The dissenting justices in the Passenger Cases argued even more forcefully that the Commerce Clause and other federal powers did not extend to immigration, and concluded that the state taxes in question are constitutional.[14]

In order to separate the issues of international and interstate migration, Professor Chin suggests that citizens might have had an implicit constitutional right to interstate movement. He cites Chief Justice Taney’s dissent in Smith v. Turner (1849), which notes that citizens have a right to engage in movement necessary to sue in federal court, petition the federal government, and the like.[15] It is far from clear that Taney’s opinion, written many years after the Founding, is a good guide to the original meaning of the Constitution.

But even if he was right with respect to these points about mobility, they do not (despite his own claim to the contrary) establish a general right to freedom of movement across state lines, but merely to such movement as is necessary to exercise specific federal rights, such as “free access… to the principal departments [of the federal government] established at Washington, but also to its judicial tribunals and public offices in every State and Territory of the Union.”[16] That does not necessarily include a general right to interstate migration.

Moreover, in the very same opinion, Taney emphasized that the power to regulate foreign commerce does not encompass a right to bar immigration—precisely because any such power would also give Congress authority to bar interstate migration:

[I]f commerce with foreign nations could be construed to include the intercourse of persons, and to embrace travellers and passengers, as well as merchandise and trade, Congress would also have the power to regulate this intercourse between the several States, and to exercise this power of regulation over citizens passing from one State to another. It, of course, needs no argument to prove that such a power over the intercourse of persons passing from one State to another is not granted to the Federal government by the power to regulate commerce among the several States.[17]

As Professor Chin notes, the right cited by Taney applied against state governments, no less than the federal government; otherwise states could impede the exercise of a federal right. Yet antebellum states sometimes excluded migrants from other states, particularly those thought likely to be “paupers” or become public charges.[18] Racist state legislatures also sometimes barred free blacks, long before Taney’s erroneous ruling in the Dred Scott case held that the latter could not be American citizens.

Today, such state-based restrictions on mobility would be unconstitutional under the Fourteenth Amendment, which was intended to—among other things—forestall state efforts to restrict the freedom of movement of recently freed African-Americans. As the Supreme Court explained in a 1900 decision, “[u]ndoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment.”[19] But that was not true under the pre–Civil War Constitution.

Notes

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[1] See, e.g., Gabriel J. Chin, “Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration,” 46 UCLA Law Review 1 (1998).

[2] Chae Chan Ping v. United States, 130 U.S. 581 595, 606 (1889).

[3] I summarize my take on the travel ban case in Ilya Somin, “Donald Trump’s ‘Travel Ban’ is Still a ‘Muslim Ban,’ No Matter What the Court Said,” USA Today, June 26, 2018, available at https://www.usatoday.com/story/opinion/2018/06/26/supreme-court-ruling-travel-ban-ignores-religious-discrimination-column/734697002/. For evidence that the supposed national security justifications for the policy were almost certainly pretextual, bordering on fraudulent, see Ilya Somin, “Evidence Indicates there is no ‘Extensive’ Analysis Backing Trump’s Travel Ban,” Reason, May 24, 2018, available at https://reason.com/volokh/2018/05/24/evidence-indicates-there-is-no-extensive; and David Bier, “Travel Ban is Based on Executive Whim, not Objective Criteria,” Cato at Liberty, Oct. 9, 2017, available at https://www.cato.org/blog/travel-ban-based-executive-whim-not-objective-criteria.

[4] See Gabriel J. Chin, “Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law,” 14 Georgetown Immigration Law Review 257 (2000).

[5] 8 Annals of Congress 1974-75 (statement of Albert Gallatin).

[6] Id. at 1975.

[7] McCulloch v. Maryland, 17 U.S. 316, 423 (1819).

[8] Passenger Cases, 48 U.S. (7 How.) 283, 283 (1849).

[9] Id. at 401 (McLean, J. concurring).

[10] Id. at 405.

[11] Id. at 420, 425 (Wayne, J. concurring).

[12] Id. at 406 (McLean, J., concurring).

[13] Id., 425-26.

[14] See, e.g., id. at 501-15 (Daniel, J., dissenting).

[15] Smith v. Turner, 48 U.S. 283, 492 (1849) Taney, J., dissenting).

[16] Id.

[17] Smith v. Turner, 48 U.S. 283, 493 (1849) Taney, J., dissenting) (emphasis added).

[18] See, e.g., Anna O. Law, “Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State,” 28 Studies in American Political Development 107, 108, 112-15 (2014).

[19] Williams v. Fears, 179 U.S. 270, 274 (1900).

I would like to thank Professor John Eastman for his thoughtful response, which helps crystallize some of the issues at stake in the debate over federal power over immigration. The key problem with Eastman’s arguments is that, if applied consistently, they would sweep away nearly all structural limits on federal power – not just when it comes to immigration, but internally as well. We would end up with sort of almost unlimited federal leviathan that Professor Eastman rightly opposes in other contexts. This is the natural consequence of his arguments based on the Naturalization and Commerce clauses. The inherent authority argument does not imply unconstrained federal power to the same degree, but it has other serious flaws.

The Naturalization Clause

In his discussion of the Naturalization Clause, Professor Eastman correctly points out that some of the Founders thought that naturalization law would influence the decisions of potential migrants. But that is not the equivalent of giving the Congress the power to actually ban immigration itself. As described in my lead essay, the Founders recognized that power over naturalization is not equivalent to a power to exclude immigrants entirely.

If giving the federal government a power that influences X were the equivalent of giving it total control over X, then the federal power would be effectively unlimited. For example, federal regulations of interstate commerce undeniably influence almost every in-state activity, and indeed almost every aspect of life in the United States more generally. That does not mean that the Commerce Clause gives the federal government a blanket power to regulate or ban any activities that might be influenced by restrictions on interstate trade.

Even as an empirical matter, Professor Eastman is wrong to assume that exclusion from citizenship was a categorical deterrent to migration. It is true that many states in the 1790s did not allow noncitizens to own or inherit land. But many poor Europeans seeking to migrate to the United States had little or no chance of ever owning land in their home countries either. Even as lifelong renters, they stood to earn better wages and enjoy greater freedom in the United States than in Europe. These gains were often large enough to justify the relatively high cost of passage across the Atlantic, and the difficulty of returning home should they decide emigration was a mistake. Moreover, then as today, some states were more eager to attract immigrants than others, and migrants could hope for better treatment by the former.

In other contexts, John Eastman and I have both repeatedly opposed arguments that imply unlimited federal power, as in the Obamacare individual mandate case, where both of us spoke out against the Obama administration’s position and urged it to strike down key parts of the Affordable Care Act that could only be upheld based on such arguments. Unfortunately, Professor Eastman’s approach to the Naturalization Clause has much the same flaw as the Obama administration’s position in NFIB v. Sebelius. Both make a hash of the Founders’ carefully limited enumeration of federal powers.

The Commerce Clause

Professor Eastman’s Commerce Clause theory suffers from much the same shortcoming as his interpretation of the Naturalization Clause: it too would give the federal government virtually unlimited power. Relying on Chief Justice John Marshall’s opinion in Gibbons v. Ogden (1824), Professor Eastman claims that the power to regulate commerce is really a power to regulate “intercourse” more broadly, therefore including international migration. As I noted in my lead essay, the same logic would give Congress the power to ban interstate movement by Americans, using the power to regulate interstate commerce – surely not something permitted under the original understanding of the latter.

Moreover, in context Marshall’s reference to “intercourse” does not encompass all significant interaction between states (or between Americans and foreigners) but rather interstate and international commercial transactions. In a part of his opinion that is unjustly neglected by most modern commentators, Marshall emphasized that the federal power to regulate interstate commerce did not encompass state “[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c..”[1]

As Marshall recognized, such laws “have a remote and considerable influence on commerce,” but still do not fall within the scope of the commerce power.[2] The same goes for laws barring the entry of migrants, which clearly have a major impact on interstate commerce, but do not themselves regulate trade in “articles of commerce.”

It is true that the power to regulate foreign commerce can be used to regulate passenger ships engaged in commercial transactions. But, as discussed in my lead essay, such authority cannot be leveraged into a power to bar entry into the United States without undermining the Constitution’s scheme of enumerated powers.

Professor Eastman suggests that the Migration or Importation Clause, particularly the use of the word “migration” therein, shows that the power to regulate foreign commerce encompassed the power to ban migration by free persons. This argument, too, was addressed in my lead essay. As I explained there, the “migration” referred to does not imply a general power to bar migration by free persons, but only that of those who also qualified as “articles of commerce” in the understanding of the time: which includes indentured servants – an important category of free migrants during the colonial era and the early republic. Professor Eastman also fails to address James Madison and John Jay’s specific denials that the Migration or Importation Clause implies the existence of a general power to restrict migration. In Federalist 42, for example, Madison decried “[a]ttempts [that] have been made to pervert this clause into an objection against the Constitution, by representing it…as calculated to prevent voluntary and beneficial emigrations from Europe to America.”

It is also somewhat strange that Professor Eastman contends that the word “persons” is a euphemism for slaves, but not the Migration or Importation Clause, as a whole. The truth is that the entire Clause was drafted in a euphemistic way in order to preclude Congress from having the power to ban importation of slaves (and indentured servants) until 1808, but without explicitly saying so. Both “persons” and “migration or importation” were, to use an anachronistic term, “politically correct” terms for referring to the brutality of the slave trade. As Jay put it: “some of the States [represented at the Constitutional Convention] were not only anxious for a Constitutional provision against the introduction of slaves. They had scruples against admitting the term ‘slaves’ into the instrument. Hence the descriptive phrase ‘migration or importation of persons.’”[3]

Inherent Power

Unlike his other two arguments, Professor Eastman’s argument that federal power over immigration derives from an inherent power of sovereignty does not have the defect of giving the federal government nearly unlimited power to regulate anything it wants – especially the power to forbid interstate migration. But, unfortunately, he fails to address my criticisms of that theory in my lead essay.

Among other things, the assumption that the federal government has any power that might have been considered a standard attribute of sovereignty in the 18th century would render superfluous many of the powers specifically enumerated in the Constitution, such as the power to declare war, raise armies, and imposes taxes. If these powers were enumerated merely to specify which branch of government has them, one would expect that such specification would also be necessary for a power so significant as authority over immigration.

If we can infer the existence of a power so important as authority to ban immigration, despite the absence of any enumerated grant of authority, one wonders what other previously unknown federal powers can be created by the same means. For example, eighteenth century European rulers were generally understood to have the power to control education in order to indoctrinate the population in their preferred religion and ideology. They also were considered to have the power to regulate the family and upbringing of children. This suggests that the federal government has a general power over education and family law, an inference that probably will not sit well with Professor Eastman and other conservatives.

Professor Eastman’s argument here also conflates the restrictions on migration with restrictions on political participation. While a distinct “people” of some kind may be necessary to institute and maintain a government that “protect[s] and secure the blessings of liberty,” this is amply provided for by the authority to set criteria for citizenship and participation in government. People can have a natural right to freedom of movement without also having a natural right to citizenship or voting. Both during the Founding era and today, many people live in the United States without being citizens, and even many who are citizens do not have the right to vote or hold political office. Consider, for example, the exclusion of children and (in many states) convicted felons and some of the mentally ill, from the franchise.

As Professor Eastman rightly points out, some in the early republic were indeed concerned about the potentially harmful political influence of immigrants from “despotic” nations. But the remedy for that problem was not migration restrictions, but restrictions on eligibility for citizenship and the franchise. Moreover, it is worth noting that this concern was largely misplaced. In reality, nearly all the immigrants who played a key role in developing America came from “despotic” nations. This is certainly true of 18th and 19th century immigrants from continental European nations, nearly all of which were despotisms at the time. It was even true of immigrants from Britain, which was a narrow oligarchy at the time, one in which only a small fraction of the adult male population could vote in elections for the House of Commons prior to 1832. If immigration from despotic societies were a genuine menace to American freedom, the latter would have been lost long ago.

A full discussion of this important question of political theory is probably beyond the scope of this symposium. Here I emphasize only that the existence of a distinct political society does not automatically require restrictions on migration, as opposed to citizenship and political participation, and that the Constitution effectively distinguishes between the two by giving Congress a general power over naturalization, but not migration.

Notes

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[1] Gibbons v. Ogden 22 U.S. (9 Wheat.), 1 203 (1824).

[2] Id. at 204.

[3] The Founders Constitution vol. 3, 298 (Philip Kurland & Ralph Lerner eds. Chicago: University of Chicago Press, 1987) (John Jay to Elias Boudinot, Nov. 17,1819).