The Volokh Conspiracy

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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 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.