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Volokh Conspiracy

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.