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Cato Unbound Symposium on Federal Power Over Immigration

The lead essay on this month's Cato Unbound is my article outlining why the text and original meaning of the Constitution do not give the the federal government any general power to restrict immigration. There will be responses by critics, and ongoing discussion until October.

The Cato Unbound topic this month, is an exchange on federal government power over immigration. The lead essay is my article explaining why the text and original meaning of the Constitution do not give the federal government any general power to restrict immigration. Cato Unbound will soon post responses by prominent constitutional law scholars Gabriel "Jack" Chin and John Eastman. I will then post rejoinders, and there may well be further discussion through the end of the month. Here is an excerpt from my piece:

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 they 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.....

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....

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 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 remainder of the article critiques claims that a general power to restrict immigration can be derived from other powers given to Congress and the president, and also the argument (embraced by the Supreme Court in the Chinese Exclusion Cases of 1889) that such a power does not have to be enumerated in the Constitution, because it is inherent in the concept of sovereignty. I also explain why this issue matters today, even though it is unlikely that the Court will reverse the Chinese Exclusion Cases anytime soon.

I am grateful to Jason Kuznicki of Cato Unbound for coming up with the idea for this event, and arranging it, and to Gabriel Chin and John Eastman, for what I know will be their thoughtful comments and criticisms.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • CJColucci||

    If Congress doesn't have power over immigration, who does? Can Texas have one set of laws regulating immigration across the Mexican border, even of people who, quite sensibly, have no intention of staying in Texas, while Minnesota has another set to deal with Canadians? Or does nobody have any power over immigration?

  • bernard11||

    There is some difference between power over immigration and power over immigrants.

    Suppose Texas could pass a law prohibiting crossing the border into Texas without some sort of permission. OK. Then it could arrest those caught crossing, and others who they could prove crossed into Texas illegally.

    But I don't see how that would give the state any authority over someone in Texas who had crossed into Arizona, California or New Mexico, or had entered the country elsewhere.

  • JeffDG||

    Why couldn't, say, South Dakota have a law respecting aliens wishing to reside in the state, regardless of where they entered the country?

    While the 14th Amendment gives due process rights to non-citizens, only citizens are entitled to the privileges and immunities protection, and the power to define the requirements to become a citizen is clearly vested in Congress.

  • bernard11||

    I don't quite understand your comment.

    Are you saying that SD could, for example, impose extra taxes on non-citizen residents, or prohibit their children from attending public schools?

    The power to set the requirements fro citizenship does belong to Congress, of course, but I'm not sure how that would work. Suppose Congress said you were disqualified from ever becoming a citizen if your entry was illegal under the laws of the state you initially entered. I bet some states would have either very loose laws or none at all. Now what?

    OTOH, I may have misunderstood your comment entirely.

  • Brett Bellmore||

    Consider the 10th amendment; If the power to restrict entry isn't given to the federal government, (It is, but hypothetically.) then barring a constitutional clause denying it to the states, it is, by default, a state power.

    Where is that clause denying it to the states? It doesn't appear in MY copy.

    Ilya really doesn't want to think about the implications of his position.

  • bernard11||

    Again, Brett, I think it is important to distinguish between restricting entry and dealing with those already here.

    Suppose, hypothetically, that the power to restrict entry resides with the states. (As a practical matter that's silly, but never mind).

    How does that let the states enforce restrictions on those who entered in other states, where it was plainly legal?

  • Brett Bellmore||

    You're assuming that, if you've entered the US, you can travel anywhere in it. But if the power to restrict entry is reserved to the states, then Nebraska doesn't have to permit you across its border just because Rhode Island let you in.

    States are not permitted to construct internal borders exactly because this is a power reserved to the federal government. This is the point Ilya misses in his rush to deny that power to the federal government: Under the 10th amendment a power doesn't go away unless expressly forbidden, it just ends up a state power.

    By denying the power to enforce borders to the federal government, he'd be handing it to the states, on the clear terms of the 10th amendment.

  • JeffDG||

    I don't think that SD could prohibit non-citizen children from going to public schools. The right to equal protection is not restricted to citizens.

    However, I think that SD could decide to admit, or not, certain immigrants to the state itself. That would have no impact on whether North Dakota would admit those same people.

    Suppose Congress said you were disqualified from ever becoming a citizen if your entry was illegal under the laws of the state you initially entered. I bet some states would have either very loose laws or none at all. Now what?

    Well, that would be up to Congress to decide.

  • Mannix||

    "As gentlemen well know, we are limited to matters of migration of aliens to territories belonging only to the United States as the States never surrendered their sovereign power over alien migration within their own limits."

    --Rep. John Bingham, Fourteenth Amendment Sec. 1 Framer, Chairman of the House Judiciary Committee

  • loveconstitution1789||

    Congress had its restriction of regulating immigrants as of 1808. Slavery was banned but this clause still applies to immigrants.

    Article I, Section 9: 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 one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

  • Mannix||

    Slavery was banned through making it a "piracy".

  • DjDiverDan||

    More to the point, if Congress has no power to restrict immigration, isn't Article I, Section 9, Clause 1 (which reads, in part, " 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 one thousand eight hundred and eight, . . .") completely unnecessary, or at least overbroad? The slave states were obviously concerned that Congress might prohibit the importation of slaves. And, yes, arguably it could accomplish that under its power to regulate foreign commerce. But then why bother to add the word "Migration" to the clause, unless it was understood that Congress could also restrict the immigration of persons who were not slaves (like indentured servants, paid labor, etc.)?

  • mse326||

    I was under the impression that "migration" was necessary to ensure the slave owner would be able to take or sell the slave between different states. Import gets you into the country, migration moves you around the country. But I haven't studied it to know for sure. That was just my impression of why it was there given the purpose of the clause and the limitation on what importation generally means.

  • loveconstitution1789||

    Migration is done by free persons (Immigrants) and since they were not imported, could not be taxed.

    Slaves were imported and could be taxed.

    This clause was added to prevent Congress from reclassifying slaves as 'migrants" and then regulating their entry into the states.

    Slavery was banned but this clause still applies to immigrants being regulated by Congress as of 1808.

  • Mannix||

    Article I, Section 9, Clause 1 was enforced through piracy law over the high seas not within states themselves. States were left to protect their own boarders unless there was an armed invasion involved.

  • loveconstitution1789||

    Until 1808, then Congress was able to regulate migration of free persons and regulate slavery.

  • Mannix||

    Outside of the States, yes.

  • JonFrum||

    "You can own a house, but you have to right to keep other people out of it."

    Does that make sense? Sovereignty, plain and simple. The existence of a sovereign state demands the ability to restrict entrance and settling. Without the latter, the former cannot stand.

    This is the kind of thing that will bring out the 'unregulated militia.' Not a good idea.

  • JeffDG||

    Sovereignty can rest as comfortably on the shoulders of the State as it can with the general government.

    Those powers not granted to Congress belong to the States. In the absence of a federal power, why couldn't Nebraska have their own immigration regulations?

  • bernard11||

    why couldn't Nebraska have their own immigration regulations?

    Well, they could, but they would be of limited use, since the only way to immigrate to Nebraska is to fly in from abroad.

  • Brett Bellmore||

    But there are a lot of ways to fetch up against the Nebraska border, and be denied entry.

  • bernard11||

    I don't think so.

    Nebraska can't, I think, deny entry to anyone legally in the country.

  • mse326||

    But isn't that kind of the point of this debate? The right to travel between states has been regarded to be one of (the only?) right under P&I of Article IV. But that only applies to "citizens." Congress unquestionably can determine who has the right to be a citizen (Naturalization). The question is who get's to determine the legality of entry for non citizens.

  • JeffDG||

    Nebraska can't, I think, deny entry to anyone legally in the country.

    Let's take as a given for the moment that the feds lack the power to regulate immigration. That is, quite obviously, a...controversial...given, but let's assume it for the moment.

    In Paul v. Virginia, the right to free ingress and free egress from a state was said to be one of the "privileges and immunities". These rights are protected under the 14th Amendment only to citizens, not to aliens. This is in contrast to the due process and equal protection clauses that apply to everyone, not just citizens.

    That means that a state, in the absence of federal power, could regulate the ingress and egress of aliens into and out of their territory. Such aliens would be subject to such regulation until such time as they naturalized. So, California could have open immigration into their state, while Oregon could prohibit alien residence entirely.

  • JonFrum||

    No it can't. There is one United States, with one foreign policy. If states were sovereign to the point of making immigration law, then why not diplomacy? The states gave up their sovereignty when they formed the Union.

    And the power to control the border is inherent in the nature of sovereign borders. It's definitional, and nested inside the very existence of the nation. Again, if I can't control who comes into my house, then I don't really own my house. When you buy a house, there nothing in the contract that says you get to keep people off your property - it goes along with the very principle of private property.

  • loveconstitution1789||

    The exception was until 1808, so Congress could not regulate slavery and states decided who entered and who didnt.

  • FlameCCT||

    Slight correction: "unorganized militia" not "unregulated militia" as they are regulated under US Code.

  • JeffDG||

    For those who simply take as a given that immigration is a "national" issue, I would cite some foreign law. The Constitution Act, 1867 (https://goo.gl/UH6DSH) for Canada (formerly known as the British North America Act of 1867) specifically divides the power of immigration between the federal and provincial governments in s95:

    95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.

    It should be noted that when the BNA Act was enacted, there was a definite look to the south regarding federalism and how the levels of government interact with each other, and there are differences that were selected intentionally. For example, the "residual" power is vested in the federal government, not the provinces (in stark contrast to the 10th Amendment).

    In the absence of a power of Congress, power to regulate immigration into a state would be the jurisdiction of that state's legislature exercising their police power.

  • FlameCCT||

    Unfortunately I don't see an absence of a power of Congress, Article I, Section 9, Clause 1 which starts with "The migration..." and it makes clear that Congress can make laws regarding migration after the Year 1808.

  • Krayt||

    Christ Almighty, the Trump Derangement Syndrome is utterly out of control here.

    Trump is an ass, but is that enough reason to burn to the bedrock any possible constitutional authority to restrict immigration, which is quite reasonable in any context, "but-for" TDS?

  • Sarcastr0||

    I think this is pretty silly as well, but this is Prof Somin all the time; it has nothing to do with Trump.

  • Rev. Arthur L. Kirkland||

    I sense plenty of people will object to authoritarianism and bigotry long after Trump has departed the White House.

    Libertarians in particular.

  • Brett Bellmore||

    Yeah, Rev, the difference is that, with Trump in office, a lot of people regard the normal exercise of Presidential power as "authoritarianism and bigotry", because Trump.

  • bernard11||

    Well, it is certainly possible for a President to exercise his normal power in an authoritarian and bigoted fashion, as Trump demonstrates.

  • Sarcastr0||

    That is indeed silly (caveat bernard's point below. Blackmailing companies is legal, but bad).

    Also silly are those who knee-jerk assume that any policy criticism of Trump is actually a lie hiding personal animosity about Trump. That no doubt happens sometimes. But assuming it off the break is just a convenient way to discard all opposing arguments.

  • Krayt||

    In science, you address the argument, not the arguerer. In politics, you often start with the arguerer. That's what I liked about this site, it didn't really do that, aside from the bias towards defending constitutional rights.

    When Trump was on the mere horizon, this blog mentioned in passing the plenary powers doctrine and how it might authorize even direct religious restrictions, maybe.

    Then Came TDS. I am fine abandoning it w.r.t. pure religious restrictions, and having a discussion as to what constituties real bias and real alternative arguments to restrict from certain countries, but to think any of this here lately is some reasoned response beyond TDS, that they's even remotely consider, much less tout, beggars belief.

    There's good reason to have very open immigration, such as Julian Simon's economic observations that in an economically free land, the more people the faster the progress and the better for all. But TDS is not one such valid motivation.

  • Sarcastr0||

    It sounds like you are calling animus TDS? It's a separate issue from your initial post implying Somin's posts were in bad fiath, but I find the animus policy question pretty interesting (although quite academic at this point as I think it's clear SCOTUS ain't biting.)

    The issue, to me, is one of pretext. The past cases on religious regulation and anti-gay laws were more about how the law's formality didn't matter since there was strong evidence that the actual intent was to functionally target a group in violation of Equal Protection while hiding behind a formally neutral statute.

    As applied to the Trump travel ban, I buy that there was pretty good evidence that he wanted to ban Muslims, and that any failure to live up to that promise was largely set-dressing formality to pass court muster. But it is not at all clear whether that ended up being the function of the order as doubly revised.

    Which is more or less how I'd hope a court would rule. Yes, animus is a legit doctrine, even as applied to executive actions and immigration. But this action passes muster since it fails to functionally target Muslims.

    Point is, it's a meaty jurisprudential question regarding the limits Presidential action that's Trump-independent, and not TDS in any way, shape, or form.

    Finally, as to your original post, Somin's got an agenda to be sure, but it has nothing to do with Trump, so criticizing him on those grounds doesn't work.

  • Sarcastr0||

    It sounds like you are calling animus TDS? It's a separate issue from your initial post implying Somin's posts were in bad fiath, but I find the animus policy question pretty interesting (although quite academic at this point as I think it's clear SCOTUS ain't biting.)

    The issue, to me, is one of pretext. The past cases on religious regulation and anti-gay laws were more about how the law's formality didn't matter since there was strong evidence that the actual intent was to functionally target a group in violation of Equal Protection while hiding behind a formally neutral statute.

    As applied to the Trump travel ban, I buy that there was pretty good evidence that he wanted to ban Muslims, and that any failure to live up to that promise was largely set-dressing formality to pass court muster. But it is not at all clear whether that ended up being the function of the order as doubly revised.

    Which is more or less how I'd hope a court would rule. Yes, animus is a legit doctrine, even as applied to executive actions and immigration. But this action passes muster since it fails to functionally target Muslims.

    Point is, it's a meaty jurisprudential question regarding the limits Presidential action that's Trump-independent, and not TDS in any way, shape, or form.

    Finally, as to your original post, Somin's got an agenda to be sure, but it has nothing to do with Trump, so criticizing him on those grounds doesn't work.

  • Sarcastr0||

    OK now the previous button make a post? Neat feature there.

  • QuantumBoxCat||

    This essay is more indicative of the sophistry often employed in originalist arguments than it is an analysis of disagreements that were occurring in the early period of the country.

    In his essay Somin writes, "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" (emphasis added)

    What exactly does it mean for a view to be "dominant"? The first definition provided by the Oxford English Dictionary is "Exercising chief authority or rule: ruling, governing, commanding; most influential." For the originalist, Samuel Johnson's Dictionary of 1792 defines "dominant" as "To predominate; to prevail over the rest." This is a quantitative, or measurable, term; although a precise number evades the definition. If there are a 100 people, then I believe it would be fair starting point to say that a "dominant" view would be one shared by 51 or more, although such term would incline me to lean more to 75 or more, if not higher.

    ...

  • QuantumBoxCat||

    The central claim though, is that the view Somin is going to put forward was "commanding" or "most influential" during the early period of the republic. In our contemporary period we might look to public opinion polls as a means of measuring the level of agreement with regards to a particular view. But even this is finicky as polling shows that the views of the public change based on context.

    As there was no scientific polling at the founding, Somin must provide some evidence that leads to a reasonable inference that the view is espousing was dominant. But, as is seen in the last sentence of that paragraph, he points to only two individuals, both of whom were opposed to a political policy put forward by a member of the opposing party. The essay refers to passages by Madison, Jefferson, a debate in the 1790 Congress (but again only Madison is referenced), John Marshall's opinion in McCulloch, Hamilton (on the same issue), C.J. Roberts, John Jay (on slavery), Madison (on slavery), and contemporary legal scholar Michael Ramsey.

  • QuantumBoxCat||

    In the discussion on the Necessary and Proper clause, in which Marshal and Hamilton are used, the actual claim Somin makes is, "But while the Founders disagreed about the meaning of "necessary," there was widespread agreement that the word "proper" represented an in independent constraint on the powers granted by the Clause ..." (emphasis added). It is the quite the leap to go from Marshal and Hamilton to "widespread agreement," especially given the backlash by many to the McCulloch decision.

    This essay demands leaps in inference that are simply untenable.

  • bernard11||

    It seems more likely to me that there were no strong views on immigration at all. Maybe the question of whether it would be wise to restrict immigration just never really arose, or grabbed any attention. It surely would have been easy to write

    "To establish an uniform Rule of Naturalization and immigration, and uniform Laws on the subject of Bankruptcies throughout the United States;" Just two extra words.

    If there are Constitutional issues like that, what do the originalists do?

  • Brett Bellmore||

    I would agree, it was not an issue at the time, because America was drastically underpopulated, the real concern was getting enough immigrants.

    So the issue just did not come up, and you would not expect it to be directly addressed in any prominent fashion.

    But that doesn't mean that if it had been raised as a hypothetical they wouldn't have had an opinion. Just that it's hard to find evidence of what that opinion would have been.

    I'm convinced that that power to control entry was viewed as an attribute of statehood, and so was expected to be had, even if they had no reason at the time to exercise it. But proving this isn't straightforward.

  • FlameCCT||

    Why would Congress need the authority to pass Laws for Naturalization (i.e. make one a citizen) without understanding that said laws were about non-citizens (i.e. foreign nationals, migrants)?

  • FlameCCT||

    "Somin must provide some evidence that leads to a reasonable inference that the view is espousing was dominant."

    The evidence is in the Constitution, Article I, Section 9, Clause 1, however that same evidence also provides when Congress can take over migration & importation of people (if they so choose) starting in 1808.

  • loveconstitution1789||

    +1

  • QuantumBoxCat||

    Fortunately though, for those interested in the debates and disagreements that were present among legal scholars during the early period of the republic (as opposed to disagreements of legal scholars in 2018), the University of Chicago Press provides quick links to sources related to provisions of the Constitution. http://press-pubs.uchicago.edu.....nship.html

    Reading through Blackstone (1765), St. George Tucker (on Blackstone's Commentaries) (1803), James Kent (1826-27), William Rawle (1829), and Joseph Story (1833), on the subject of naturalization provides some initial insight into the jurisprudence (when the term had a wider meaning) of the time. These writers are even thoughtful enough to go back to Roman times and early English practices when discussing the issue. Kent and Tucker and especially helpful to read in conjunction with each other as the former former's sympathies lie with national power while the latter seeks to carve out space for the states. Reading both authors provides an initial look at the differences in legal opinions, especially since their books were used as text books in law schools at the time.

  • dwshelf||

    This has the same feel as when someone offers a scholarly analysis of why paper money is unconstitutional.

    One's first thought is, "so what"?

  • Brett Bellmore||

    Well, at some point you do have to distinguish between practice and the actual meaning of the law, or you're just throwing out the idea that the powers that be are capable of mistakes or even violations of the law.

    There's a long standing pattern where the courts first permit a work-around for some clause of the Constitution, then after a while just stop enforcing it. The first federal paper money wasn't issued as currency, but as debt instruments, Congress having the power to borrow money. Dollars effectively remained debt instruments, claims on federal gold stores, until FDR ended gold based currency. Arguably it was at THAT point that the federal government violated the Constitution.

    As for "so what", every time with let a violation of the Constitution go without complaining, the next violation becomes easier. So we're gradually losing the rule of law, and boy, does it every show.

  • dwshelf||

    The SC seems highly unlikely to disrupt an important segment of law over a point which simply isn't in play.

    And such points aren't put in play simply by someone writing a scholarly analysis.

    At the very least, to get into play, there would seem to require some widely appreciated benefit in some potential change.

    The idea that the the federal government should cease control over immigration is preposterous, regardless of what the constitution says. Given that absurdity, it's simply inconceivable that the SC is even slightly interested in taking up the issue.

    I'm all for the rule of law, and not going off track from what the constitution says, but one has to pick sensible battles. There is a longstanding creation of the SC which allows restrictions on gun ownership. In the margin, it's interesting, and the gun grabbers are always trying to find a restriction which will effectively cover everyone. That's the kind of battle worth fighting, while arguing that any restriction is unconstitutional would be a total waste of energy.

  • ||

    The problem with that is it becomes a self fulfilling prophecy. Full-autos are effectively banned. Then, 15 years down the road, people say "No one disputes that we can't and shouldn't be ban full-autos, so we should also obviously ban semi-autos that are otherwise identical."

  • Eddy||

    There is the embarrassing fact of the slave-trade clause, letting states import African slaves for 20 years.

    But they didn't phrase it that way. They said that prior to 1808, the feds could not prevent the "migration or importation" of "persons" the (then existing) states wanted to "admit."

    Which suggested that migration and importation could be regulated after 1808.

    Importation would cover the slave trade, but "migration" seems to cover immigration.

    Let me guess - it's way more complicated than that, right?

  • Eddy||

    Ah, the article covers this:

    "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....

    "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."

  • Eddy||

    So if you're not a slave or indentured servant, Congress can't keep you out?

  • Brett Bellmore||

    Wait, a clause giving Congress the power to ban the importation of slaves was meant to bolster the pretense that the Constitution didn't endorse slavery?

    Mostly they just avoided the topic, but except for the fugitive slave clause, every mention or nod was negative to some degree.

    They really thought it was on the way out at the time, and thought that the problem would solve itself if they just kicked the can down the road. But along came the cotton gin...

  • loveconstitution1789||

    The slave states were worried that Congress would regulate slavery before 1800 and then 1808 or get tricky by calling slaves "migrants/immigrants" and regulate slavery that way. The slave states wanted to control who came into their states until the agreed upon 1808 year for that power to shift to Congress.

  • mse326||

    I gave my impression on this above (admittedly unstudied) that I always thought of migration as migration not from an outside country, but within the country. That is that it prevented Congress from passing laws restricting a slave owners ability to take the slave over state lines.

  • loveconstitution1789||

    It covers international travel. Interstate travel was covered by Article IV, section 2:
    The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

    Slaves came from Africa, which is international importation.

    Immigrants were never 'imported', they migrated.

  • librarian||

    @OP: "the the" — I'm sorry friend, but stop, just stop

  • ReaderY||

    The Importation Clause. It's past 1808.

  • ReaderY||

    The Importation Clause confers a general power on the federal government. It may well have been given because of slavery. It certainly included slavery at the time. But it is in no way limited to slavery. No other grant of federal power is then limited to its supposed original context, especially when that supposed context is unstated.

    This is activism, not scholarship.

  • mse326||

    The importation clause wasn't a grant of power. It is the prohibition on using power over a certain subject for a certain amount of time. The passage of the time element does not make the Importation Clause an independent source of power. It just means it no longer restricts the use of other powers. You still must locate the other clause that asserts the power you wish to use.

  • ReaderY||

    A first rule of textual interpretation is to reject an interpretation that makes a clause either a complete nullity or complete nonsense.

    A clause limiting a power is both - a nullify and nonsense - if the power it limits isn't there.

    So the only sensible interpretations of this clause are either that the clause itself grants a limited power, or that the power was already there (by some other means, such as the Foreign Commerce Clause) for this clause to limit.

  • Bob from Ohio||

    "So the only sensible interpretations of this clause are either that the clause itself grants a limited power, or that the power was already there (by some other means, such as the Foreign Commerce Clause) for this clause to limit."

    +1 million.

    Congress had the power to ban immigration but it was tolled. Any other answer is just open borders agitprop.

  • MatthewSlyfield||

    I think a case can be made that the importation clause is about the importation of people as slaves. As such it would be a limitation of Congresses general power to regulate foreign commerce and does not imply a general power to control immigration.

    On the other hand, the actual wording of the clause is "Migration or Importation", which would imply that it covers both the migration of free persons (immigration) and the importation of slaves (foreign commerce).

    Personally, I think the latter is more persuasive.

  • MatthewSlyfield||

    HTML formatting error. An edit function would be nice.

    I think a case can be made that the importation clause is about the importation of people as slaves. As such it would be a limitation of Congresses general power to regulate foreign commerce and does not imply a general power to control immigration.

    On the other hand, the actual wording of the clause is "Migration or Importation", which would imply that it covers both the migration of free persons (immigration) and the importation of slaves (foreign commerce).

    Personally, I think the latter is more persuasive.

  • loveconstitution1789||

    +1

  • Smooth Like a Rhapsody||

    Insofar as most people are crossing the border--ostensibly, anyway--to work, why wouldn't the Commerce Clause allow Congress to regulate the introduction of workers into the national labor market?

  • Brett Bellmore||

    Well, there is the little issue that the Constitution doesn't have a "commerce clause". It has an "Interstate commerce clause.

  • JeffDG||

    Well, to be clear, it's not just interstate, but also international, and with the Indian tribes.

  • DjDiverDan||

    Article I, Section 8, Clause 3: Congress shall have the power "To regulate Commerce WITH FOREIGN NATIONS, and among the several States, and with the Indian Tribes;"

    So it is much more than just an INTERSTATE Commerce clause.

  • Brett Bellmore||

    But what it decidedly was not, was a general, unqualified power to regulate commerce. It was not a "commerce" clause. It set out specific categories of commerce as within Congress' power to regulate, and thus excluded all others.

    And, for most of my life, it has been referred to as the "interstate" commerce clause.

  • Brett Bellmore||

    But much, much less than a "commerce" clause. It is the power only to regulate commerce which crosses specified boundaries.

  • Brett Bellmore||

    Sheesh, I even left and reloaded the site, to confirm that my comments hadn't been accepted. What a messed up commenting system.

  • loveconstitution1789||

    Brett, that's right.

    Intrastate commerce is the realm of state regulation not federal regulation.

  • ||

    "The lead essay is my article explaining why the text and original meaning of the Constitution do not give the federal government any general power to restrict immigration."

    Because the framers and their supporters were just guys like anyone else and sort of obviously lacked the authority to grant themselves power over others as explained in Lysander Spooner's No Treason #6 - The Constitution of No Authority?

  • Brett Bellmore||

    No, Ilya is quite comfortable with them exercising powers he likes.

    He just doesn't like border enforcement.

  • loveconstitution1789||

    +1

  • Brett Bellmore||

    I'd like to see Ilya better address the "offenses against the law of nations" argument. The Constitution does clearly empower Congress to "define and punish offenses against the law of nations", and per Blackstone, " No entry across national borders without permission of national authorities. " was one traditional element of that.

    Ilya dismisses this as applying only to the movement of armies and such. Says, in fact, "Eighteenth century understandings of the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit. 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."

    I really don't see how this works. It sure looks to me as though this is indeed an implication of it.

  • Allutz||

    It appears to me that the good professor is ignorant about the history of war and various tactics employed. The saboteur masquerading as a merchant goes back at least to the Assyrians, was a contributing factor, for instance, to the closing of China from Europe.

    Now, Prof. Somin might counter that Mexican or Chinese immigrating to the US have no desire to be part of China and Mexico's foreign policy goals, but it does seem quite clear that establishing US/XXX dual citizens is a goal of many foreign powers as a part of their own foreign policies in an attempt to influence US policy. If a country wishes to restrict immigration not only as a deterrence against intentional saboteurs but also against naive dupes, that is a perfectly reasonable execution of the war powers of the state.

  • John Aronson||

    What about Art. I, § 9? It clearly states Congress can prohibit the immigration and or importation of persons by states after 1808.

  • MatthewSlyfield||

    The argument from the no power over immigration viewpoint would be that Art. 1 Sec 9 is about the importation of slaves (foreign commerce) not the immigration of free persons.

  • Brett Bellmore||

    And the argument from the other side is that it's about both.

  • MatthewSlyfield||

    Agreed, and I think the argument for both is more persuasive.

  • Mannix||

    They used piracy law to prevent importation, not immigration law within states.

  • loveconstitution1789||

    In 1808, Congress was allowed to regulate migration of free persons and importation of slaves.

    Both across state lines and from outside the USA.

    Piracy involves violating international and USA law relating to the high seas. High seas being outside the territorial waters of the USA. Congress also controls the territorial waters of the USA.

    Just like the National Border, these demarcation lines served a purpose for jurisdiction and authority and fit within international law.

  • Mannix||

    You will note the inclusion of piracy as a power lodged with Congress but no immigration authority so Congress had to use that to prohibit slave transport.

  • Mannix||

    "As gentlemen well know, we are limited to matters of migration of aliens to territories belonging only to the United States as the States never surrendered their sovereign power over alien migration within their own limits."

    --Rep. John Bingham, Fourteenth Amendment Sec. 1 Framer, Chairman of the House Judiciary Committee

  • Sarcastr0||

    ...Do we get to drink?

  • loveconstitution1789||

    The Founders warned against comments and speeches given when the language is not specifically in the Constitution. The Constitution is the Supreme Law as written.

    Rep. John Bingham was not a Founder and would have zero first hand knowledge of what the Founders 'meant' relating to state regulation of migrants.

    States are not allowed to prevent people from entering their state after 1807. Every citizen who travels from one state to another is guaranteed the rights, privileges, and immunities as everyone else, in that new state.

  • Jon_Roland||

    The constitutional authority for the federal government to restrict immigration is in the Law of Nations Clause. Entry into a nation without consent is a violation of the law of nations. See http://constitution.org/cmt/law_of_nations.htm

  • Mannix||

    This is a Republic, not a Single State Nation with all the powers lodged in a single entity (well that is the way it was supposed to be before the court gummed it up horribly).

  • Ridgeway||

    This whole argument is silly.

    First off, does anyone seriously think that if the SCT had said back in the 19th Century that the Fed Govt had no authority over immigration, that there would not have been an immediate constitutional amendment granting them that authority? Especially post Civil War.

    On top of that, interstate travel doctrines etc (like the P&I clause and the dormant commerce clause) are predicated on the Feds having authority over immigration. Had immigration been a purely state matter, those doctrines would have developed differently, at least vis-a-vis the movement of persons..

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