Immigration and the Constitution: Does Obama Have the Law of the Land on His Side?


Credit: White House /

As Robby Soave previously noted, libertarian George Mason University law professor (and sometime Reason contributor) Ilya Somin has written a constitutional defense of President Barack Obama's unilateral immigration action. I wanted to highlight one particular prong of Somin's argument. He writes:

the immigration laws covered by the president's executive order may go against the original meaning of the Constitution. Under the original understanding, Congress did not have a general power to restrict immigration (though it did have power over naturalization). That may not matter to adherents of "living constitution" theories of legal interpretation. It also should not matter to those who believe that the Constitution generally means whatever Supreme Court precedent says it means. Immigration restrictions have been deemed permissible under longstanding precedent dating back to 1889.

But it should matter to those who consider themselves constitutional originalists, which includes many of the conservatives who have been most vehement in opposing Obama's actions today. If you believe that the Constitution should be interpreted in accordance with its original meaning, and that nonoriginalist Supreme Court decisions should be overruled or at least viewed with suspicion, then you should welcome the use of presidential discretion to cut back on enforcement of laws that themselves go against the original meaning.

I am no fan of the Obama administration's approach to constitutional interpretation. In too many instances, the president really has acted illegally and undermined the rule of law—most notably by starting wars without congressional authorization. But today's decision isn't one of them.

This is a compelling argument. America's current immigration regime does raise significant constitutional questions and should therefore be viewed with suspicion by constitutional originalists. Unfortunately, the Obama administration is not making that argument. In fact, the White House has done its best to undermine Somin's position and hinder its future success.

How? By repeatedly embracing a sweeping theory of congressional power that would certainly cover the federal immigration policies at issue here. For example, in the 2012 litigation over the Patient Protection and Affordable Care Act, the Obama administration fully embraced the Supreme Court's notorious 2005 decision in Gonzales v. Raich, which said that California residents using medical marijuana legally under state law are nonetheless still subject to criminal sanction under the federal Controlled Substances Act. Why? Because the Commerce Clause allows Congress to "regulate activities that substantially affect" the nation's commerce. And according to Raich, such activities include the purely local act of cultivating and consuming a plant entirely within the confines of a single state.

Well, if that sort of activity now falls within the reach of Congress via the Commerce Clause—which covers both interstate commerce and "Commerce with foreign Nations"—it's hard to see how today's immigration controls would not also fall within the White House's broad conception of congressional power. Foreign migrants arriving in the United States have at least as much of a substantial commercial impact as do medical marijuana patients whose local treatment is sanctioned by state law. The original Constitution may not have granted Congress the authority to impede immigration as it does today, but that document also did not grant Congress the power to regulate purely local economic activity as it does today. The modern Commerce Clause interpretation endorsed by the White House, however, would seem to cover both.

To be sure, Professor Somin has identified a strong originalist argument for use against today's federal immigration system. Too bad the Obama administration lacks the constitutional understanding to make that argument stick.

NEXT: Obama's executive order on immigration is good policy, as well as good law - but not quite as good as it may seem

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  1. Sure, if Obama claimed the immigration statutes to be unconstitutional, so he was going to uphold the Constitution by not enforcing them…but that’s not what he’s doing or saying.

    1. Regardless of his intentions, that job belongs to the judicial branch, not the executive.

      1. No, that’s not entirely true. Under the Constitution, all three branches do have independent authority to decide whether something is constitutional or not. Of course, if a president takes that position in the face of the other two branches saying otherwise, he’s likely to lose or maybe even get impeached, if his argument is weak enough.

        That said, that isn’t what he’s doing here at all. I’m a little annoyed that the position here seems to be that the ends are something libertarians support to some degree, therefore, the expansion of executive power–which this is, regardless of all of the rationalization–is no big deal. We really need to stop letting the pot’s temperature increase.

        1. I’m with Pro Lib. All three branches have a coequal authority and nondelegable duty to evaluate the constitututionality of laws, and take appropriate action when they conclude a law is not Constitutional.

          The idea that only the Court should ever consider or act on the Constitutionality of a law is a pernicious one, cooked up by Congress and the President to evade their fundamental duties.

          1. R C Dean

            And so the cycle completes itself to begin anew.

  2. Speaking of boring me to death, colloge football schedule blows tomorrow. Be a good day to get some shit done I guess.

    1. Ahem. Cal-Stanford.

      1. They still around? I remember they had football teams back in the late 60’s early 70’s.

    2. I think I’m going to go buy a new gun.

      1. Whatcha gettin’?

        1. *stares at Almighty and thinks, “Great minds…” *

        2. Just a .22 semi-auto for fun plinking. I have quite a few pistols but I just sold my .22 revolver so I need to get a new .22 pistol and I want semi-auto.

          I also wouldn’t mind an AK, but that’s a more involved search.

          1. Have a buddy with a 22 walther. Pretty nice. Threaded barrel if you want to have some quiet fun.

      2. Ooo – what kind?

        I picked up another Marlin 336 a couple weeks ago. Scoped from the factory, goddamned thing was zeroed right outta the box.

        Great fun. I now have three 30-30 lever guns – two Marlin 336’s and a Henry.

        Whatcha gettin?

        1. No ’94?

          1. Nope – way too skinny a stock. I want to like that gun, cause I like Winchesters. But I hate that gun.

            I LOVE the Marlins and Henrys. And they are very accurate.

            1. Good to know. I’ve always wanted a 30 30 LA.

        2. Nobody needs 2 Marlin 336s. Better give me one.

          Some day I’ll have money to buy more guns again.

  3. Yes it is in the Constitution

    “””Article IV, Section 4 of the U.S. Constitution”””

    “””The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion”””

    And note, it does not say “armed invasion” nor “organized invasion”.

    1. Lol. And the general welfare clause covers Medicare, social security, and SNAP

      1. No, this is a specific article talking about a specific thing, invasion.

        I have not used the general welfare clause.

  4. Absolutely wrongheaded argument by Reason here. This opens a whole new avenue of governmental abuse of power – any law that is unconstitutional as per the framers (which at this point is just about all of them) can now be selectively enforced in whatever way the executive branch. This essentially abolishes congress because we could easily wave away just about every existing law under this argument.

    1. I don’t know about wrong headed, but it is not very practical. And it isn’t terribly relevant anyway as Obama is not claiming that immigration laws are unconstitutional.
      But if we had a president who was refusing to enforce any law that isn’t explicitly within the federal government’s enumerated powers, I’d be all for that.
      I don’t think that selective enforcement is justified by the constitutional argument either. It would have to be complete refusal to enforce the law at all.

  5. You don’t have to reach the constitutional issues at all. Obama’s proposal to issue work permits to the affected illegals is a direct violation of the federal immigration statutes, which are painfully specific on who qualifies for work visas, and how such visas are obtained.

  6. Does Obama Have the Law of the Land on His Side?

    Does it really matter?

    1. So what you’re saying is, What difference, at this point, does it make

  7. Artisanal, deep-dish mayonnaise on an uncircumcised penis gay married to a craft-brewed suspected terrorist.



    /so over this discussion already

  8. There’s some interesting pushback to the horrible Commerce Clause decision in Raich as it relates to the Endangered Species Act. A district court in Utah recently ruled that the feds overstepped their bounds in listing a prairie dog as an endangered species, not buying the “but the ecosystem crosses state lines” argument:

    Furthermore, Defendants’ argument concerning the biological value of the Utah prairie dog is insufficient to demonstrate that take of the prairie dog has a substantial effect on interstate commerce. The Court acknowledges that the Utah prairie dog may have an effect on the ecosystem. Nevertheless, as aptly observed by Chief Judge Sentelle, “[T]he Commerce Clause empowers Congress ‘to regulate commerce’ not ‘ecosystems.'” … . If Congress could use the Commerce Clause to regulate anything that might affect the ecosystem (to say nothing about its effect on commerce), there would be no logical stopping point to congressional power under the Commerce Clause.

    That final line sounds an awful lot like the Thomas dissent in Raich.

    1. Raich solidified Thomas as the most staunchly strict constructionist on the high court. I lost some respect for Scalia due to his separate concurring opinion.

  9. Obama’s immigration diktat gives us a chance to watch Reason’s contributors reconcile their abhorrence of arbitrary government edicts with their lust for open borders.

  10. OT:

    Top 400 U.S. Households Paid 18% Average Tax Rate in 2010…..-2010.html

    Good gig.

    1. These taxpayers had 1.31 percent of all adjusted gross income in the U.S. in 2010 and paid 2.01 percent of the income taxes, though they make up less than 0.001 percent of the population, according to the IRS.

      The comparable rate for all taxpayers in 2010 was 11.8 percent.

      This is why I don’t understand the “they aren’t paying their fair share” crap. Seems to me that they are paying a lot more than their fair share.

      1. And just to preempt sarcasmic:

        “You can tell they aren’t paying enough because they are rich”

      2. Yeah, for .001 percent of anything covering 2% of everything is pretty significant.

      3. Plus this is mostly unearned income, so they pay tax on income that was already fully liable for taxation a previous time.

        1. Unearned income, other than government pay checks, should be considered an oxymoron by libertarians.

    2. The comparable rate for all taxpayers in 2010 was 11.8 percent.

      Let’s get the pitchforks! The wealthiest have tax rates that are 50% higher!? How dare they! They’re practically stealing from the middle class!

    3. “On top of that, to help fund the 2010 health care law, Congress imposed a 3.8 percent tax on unearned income, including capital gains and dividends.”

      Yeah, it was totally not Obama’s fault that he indeed raised your taxes.

  11. A friend of mine made an excellent point today. We can shut down all the internal border checkpoints now, RIIIIIIIIIIIIIIIIIIIGHHHHHHHHHHT?

      1. Am I completely offbase in thinking this Obama immigration thing could be an opportunity to dramatically shrink the state? The more I think about this, the more I think we should quietly nod and let him proceed.

        1. It could be an opportunity, but I very much doubt it will be an opportunity that anyone with the power to do anything real will exploit.

        2. I’m sure the Roman Senate said the same thing about Gaius Marius.

    1. Re: Paul,

      A friend of mine made an excellent point today. We can shut down all the internal border checkpoints now, RIIIIIIIIIIIIIIIIIIIGHHHHHHHHHHT?

      WHAT? Are you kidding? NO! We need those checkpoints now more than ever because Ihre Papiere, bitte!

  12. Why can’t they just get Roberts to call it a tax and be done with it?

  13. No surprise here. As far as libertarians are concerned, there’s no such thing as too much government, as long as it’s in the business of nation-wrecking.

  14. Interesting argument. No president, especially the current president, will want to make such a principled constitutional argument. To do so would render nearly all legislation and executive orders on domestic affairs since Wickard v Filburn unconstitutional.

  15. If you peruse the comments in the Ilya Somin article linked above you will find Somin getting his hat handed to him. My own rebuttal goes to his obvious attempt to make hay between word definitions by attempting to say a congressional power to regulate naturalization doesn’t mean the same thing as assigning a status to immigrants, i.e. legalized vs. naturalization. Then he claims congress does not have such a power to legalize. Omitted is the constitutional power of the executive branch to do such a thing.
    His originalist argument in favor of the president’s action actually rests on statutory provisions because there are no originalist arguments giving the executive the power to do what Obama has done.
    Now my bs meter is on the fritz from overload. Agenda, anyone?

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