Cato Unbound Symposium on the Constitutional Scope of Federal Power Over Immigration Continues

Responses to my lead essay by legal scholars John Eastman and Gabriel Chin have now been posted, along with my rejoinders to them.

|The Volokh Conspiracy |

The Cato Unbound symposium on the constitutional scope of federal power over immigration continues! The CU website has now posted responses to my lead essay by leading constitutional law scholars Gabriel "Jack" Chin and John Eastman. My rejoinders to both Chin and Eastman are also now available. My initial essay explained why the text and original meaning of the Constitution do not give the federal government any general power to restrict immigration. Prof. Chin agrees with much of my analysis, but contends that I did not sufficiently explain why Congress does not have authority to bar immigration under its power to regulate foreign commerce. John Eastman contends that the federal government has power to restrict immigration under the Commerce Clause, the Naturalization Clause, and under authority that is inherent in the nature of sovereignty, and thus does not need to be enumerated. I addressed each of these points in my my rejoinders.

Jack Chin's contribution and my rejoinder to him also consider the role of racial and ethnic prejudice in the history of constitutional disputes over immigration, and the implications it has for modern-day legal doctrine in this field. Prof. Chin will soon post a further response to both Eastman and myself, and the conversation may continue for a while yet, even though it was technically supposed to end with the start of a new month. So please stay tuned! You can follow the discussion at the Cato Unbound website.

NEXT: Judge Kavanaugh, Judicial Temperament, and the "Circus"

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  1. Once again I feel the professor is ignorant about the realities of war in his redoubt about the inherent powers of a sovereign. Sending a vanguard of merchants, migrants, and others to gather intelligence and disrupt a defender’s response to attack is a common and age old military tactic. Indeed, the Trojan horse is parable for this.

    1. Let me concede one thing to you. In the scope of a declared war, I don’t doubt the ultimate power of the sovereign to exclude suspected spies and saboteurs. Absolutely.

      However, our actual immigration issues, for the most part, involve Mexicans and Central Americans coming over here to work and because of economic conditions in their home country. Analogizing them to invading armies demonstrates precisely “the role of racial and ethnic prejudice in the history of constitutional disputes over immigration” that Prof. Somin references.

      If you can’t talk about people coming over here to work without assuming they are all a bunch of people coming over here seeking to wage war on the United States, you have serious problems that really disqualify you from debating this issue.

  2. We all ought to support open borders, but only for immigrates who are well qualified to take the jobs of the globalists who live here and who will work for less pay.

  3. This sounds an awful lot like the argument that income taxes are unconstitutional. Some things are just assumed by a matter of course. The Constitution doesn’t specifically tell us where the borders of the United States are either. Does that mean we have no borders? Both immigration and borders are two things that so fundamentally define the nation itself that you can’t omit them and have a nation at the same time.

    And as Mr. Somin points out, for hundreds of years there have been numerous laws passed in regard to immigration, importation of slaves, etc. And the President has nearly unlimited powers to deny entry to anyone. If this were all unconstitutional, it’s a little late to suddenly claim that now.

    1. Um, 16th amendment? I don’t much like it, but it’s pretty explicit.

  4. There are good reasons to support open borders, not the least of which is Julian Simon’s observation that in free countries, the more people the better for progress.

    TDS is not one of those reasons, though.

    Also, because of the more the better w.r.t. progress in free and open economies, it would be better still to twist the arms of all the countries people are fleeing from to come here, to themselves reduce corruption and dictatorship and become thus more productive.

    Typical foreign policy is to bribe corruption by way of assistance so to buy general US friendliness. God forbid we’re imperialistic in helping do away with the corruption.

    1. “not the least of which is Julian Simon’s observation that in free countries, the more people the better for progress.”

      That’s why job one is becoming a free country!

      Because we’re not a “free country” in any sense that makes that observation true, at the moment.

  5. “[T]he more people the better for progress” like China and India over the past few hundred years.

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