Audio of Radio Program on Immigration and the Constitution

Yale Law School Prof. Cristina Rodriguez and I discussed this timely subject with host Stephen Henderson.


Earlier today, I participated in a radio program on "What the US Constitution Says About Immigration." WDET Detroit radio host Stephen Henderson led the discussion, which included Yale Law School Professor Cristina Rodriguez, and myself. The audio is available here.

The discussion focused much more on big-picture issues about immigration and constitutional law, than about specific present-day controversies. But it may be all the more valuable for that reason.

Prof. Rodriguez is one of the nation's leading experts on immigration law, and coauthor (with Adam Cox) of The President and Immigration Law, an excellent recent book on this topic. The book was the subject of an online symposium organized by the Yale Journal on Regulation. My contribution to that symposium is here.

During the program, I at one point noted that, while there has been great moral progress on many issues since the Founding, on immigration there has been significant retrogression. Today, we routinely accept immigration restrictions that James Madison and others among the Founders would have denounced as unjust and unconstitutional. These policies are deeply at odds with the principles underlying the Declaration of Independence. This degeneration is a dramatic example of how moral progress is not inevitable.

We also discussed how courts have (wrongly, in my view) exempted immigration restrictions from many of the constitutional constraints that apply to other exercises of government power.


NEXT: Today in Supreme Court History: September 7, 1958

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  1. If you invited someone you don’t know into your house and they drank all you liquor, trashed your home, and molested your daughter, would you be so happy to invite them back for a repeat performance?

    1. Qatar has been in the news lately…it has 300,000 citizens that are all rich thanks to LNG and Exxonmobile and Tillerson….but almost 3 million residents. So people voted with their feet to work there even though they will never become citizens.

      1. Both speakers are Ivy indoctrinated lawyer scumbags, thus dismissed. Anything they can possibly say is seditious, lying garbage. Do not bother listening to this treasonous pair.

        Wouldn’t it be more useful to have these discussions in point-counter point format? It would give the program more credibility.

        1. Ivy indoctrinated lawyers should be able to give all sides for all arguments…that’s how a legal education works. Now once they are professors they can take positions and defend those positions but they would still be teaching courses using the Socratic method.

          1. Advocacy is unethical by a professor. It is indoctrination, not education. Education covers all aspects of a subject. Education is why they are paid and privileged. Advocacy is a type of fraud.

            1. No doubt, that pure evil, Yale skank did nothing but bash Trump.

              1. I noticed, this broadcast is from “NPR” in Detroit. Never mind my comments about balance being more informative and interesting. That Ilya would get on it shows he is just another “hate America” Ivy indoctrinated jerk.

                1. From Amazon: “Cristina M. Rodríguez is Leighton Homer Surbeck Professor of Law at Yale Law School and a nationally recognized scholar of administrative, constitutional, and immigration law. Her work has been published in numerous academic journals, including the Yale Law Journal, the Columbia Law Review, and
                  Daedelus. She also has appeared regularly in media outlets, including National Public Radio, The Washington Post, The New York Times, Democracy Journal, and Forbes. Beyond academia, she served as Deputy Assistant Attorney General for the Office of Legal Counsel in the Department of Justice during
                  the Obama Administration.”

                  Totally dismissed, a piece of trash. Any utterance by her will be straight hate speech, with the credibility of the David Duke website.

                  1. Did the Yale $10 hooer mention what happened to the Native Americans failed to control illegal immigration?

                    1. Fronting as a professor when one is an advocate is mosleading and unethical. She has no morals.

    2. That’s quite a generalization on what immigrants do, you nativist prick.

      1. I would like to emigrate to the Seminole Tribe of Florida…can you tell me how I do that?

      2. Not a generalization; it only takes one to spoil it for everyone.

        1. Collective punishment, then?

          1. Permission to immigrate is not the default, such that denying it is a punishment.

            1. The logic of Darth Chocolate’s OP is not one of collective guilt, if not punishment.

              1. Only in the last charitable reading. It could also support an insistence on minimum standards for immigrants. You know, the kind that Ilya Somin always ignores when saying how superior immigrants are to native-born citizens.

                1. Your reading of that posts requires a knowledge of pre crime.

                  Besides, we have standards for immigrants. Do you think visas are shall-issue or something?

                  I swear it’s like none of you have talked to an immigrant even once.

                  Or, for that matter, one of Somin’s posts. He doesn’t say immigrants are superior to Americans.
                  That’s me – the hatred for modern America I see here is equaled only be the love the J-1, F-1, and O-1 immigrants I’ve shot the breeze with have for their adopted country.

      3. Sar. The home address or STFU, Democrat traitor. We are sending 4 immigrants to each of your bedrooms. They can sleep in shifts.

        Also, what is it you do? We have a ton of outstanding people who want to replace you at a quarter your salary. They would be thrilled to just be paid at all.

        Democrat scumbags want a permanent one party state by cheating and by importing illegal alien Democrats. First they say, much safer to give them driver licenses. Upon getting a driver license, you are automatically registered as a Democrat by cheaters at the DMV.

  2. Why is it only the United States seems to have a moral obligation to admit anyone who comes knocking at our border (or just waltzes right on over contrary to the laws of this nation)? Every other country in the world has strict immigration laws and for good reasons. And don’t give me the whole “melting pot” mythos. That was 1) legal immigration and 2) carefully managed turned on for short periods of time and then off again for a generation to encourage assimilation.

    And I ask recognizing it largely does not matter any more. Our last best hope was probably Trump and he blew it. Absent something like a full blown political revolution, economic collapse, or the end of the day world there is no way to stop the influx being actively encouraged by the international community (funny how these countries are fine dumping their citizens on us) and take corrective action to address the problem that is already within our borders.

    1. Obama started cracked down on phony asylum seekers when he characterized Cubans as “economic refugees” and rescinded “wet foot dry foot”. Some of Trump’s policies were good but some, along with his heated rhetoric, were counterproductive. So Trump and Obama weren’t that far apart on immigration/border policies…but Trump’s rhetoric beget AOC’s and Ilhan Omar’s equally heated and irresponsible rhetoric with respect to the border. Biden seems to be trending back to the Obama/Trump policies after initially trending to AOC’s which unfortunately led to much carnage and heart ache as migrants died in reckless attempts to cross the border.

  3. The Founding Fathers argument isn’t persuasive, and in any case they would have a whole host of other problems with how their ideas were twisted especially by democrats. Also disease and war had depopulated large areas once inhabited by indigenous people. Who I suspect might have something to say about unfettered immigration and cultural destruction.

    1. Immigration is not colonization. Nor is it invasion.

      Have some faith in the allure of American culture and prosperity.

      1. It can be either, depending on the circumstances. Ask Mexico about Texas.

        1. So we agree the Texas founding fathers included illegal immigrants??

        2. As I recall, there was a war involved.

          Talk to any immigrant about their agenda. It is not about taking over America by force of arms.

          1. “As I recall, there was a war involved.”

            Sure, after enough Americans immigrated to have the numbers to win the war.

            “Talk to any immigrant about their agenda. It is not about taking over America by force of arms.”

            Really? Have you talked to any members of the Reconquista? Though they’d be satisfied to win by force of votes, I’ll grant you.

            1. If the 1619 Project were called the 1836 Project it would be 100% accurate.

            2. So the scenario you are contemplating is Latinos come into this country, and when they reach the appropriate level of population, Mexico invades and the immigrants all rise up? That’s just Day of the Rope-style bigotry.

              Members of the Reconquista are small enough to be laughable, unless you’re trying to rile up the nativists.

              As part of my job I have spoken to real life immigrants who tend to be a lot more pro American than many who post on here.

              1. Irresponsible Americans like you have blood on your hands every time a woman is raped in the desert and a child drowns in the Rio Grande and a teenager literally bakes to death in a tractor trailer in San Antonio.

              2. What, you expect me to pretend along with you that the Reconquista are fictional?

                1. Not fictional, but as much of a concern as however many Americans that want us to invade Mexico.

                  1. If huge numbers of Americans were moving to Mexico in defiance of Mexican law, Mexico would have rational reason to worry about the prospects of the invasion leading to another piece of their country being taken away from them.

                    As it is, the invasion is proceeding in the opposite direction.

                    1. No, the concern would be very silly. This isn’t the 1840s.

                      You do realize how extra-crazy you sound, yes? No, it is not rational to be concerned about a Latino fifth column in the great second Mexican-American War.

                    2. Meh. More “replacement theory” bigotry.

                2. Bellmore, and don’t forget about “settler colonialism” including Lebensraum which is essentially illegal immigration with the goal of creating more territory for one’s country. Manifest Destiny is the American version…it’s very strange how the current incarnation of American progressives pooh-poohs concerns about something that has been a serious issue since the beginning of recorded history.

              3. The real life immigrants I know seem to like America in some strange abstract way but they don’t seem to like the people who created it and who live here now.

                1. The ones I’ve met like me just fine.

                  Maybe it’s a personal problem?

                  1. Anti-social right-wingers with White nationalist streaks tend to dislike most people in modern America. That’s why they come to White, male blogs to blow off steam about all of this damned progress and the no-good, educated, reasoning, modern people who call the shots in today’s America.

                2. Can you blame them? The actual people who created the country (aka: The Founders) were slave-holders who believed only landed white men could vote. That’s pretty unlikeable.

              4. More to the point, Sarcastro is avoiding the actual circumstances of what happened with Texas and Mexico

                Texas was lightly settled with people of Mexican decent in the 1920s. Americans immigrated to Texas, both legally and illegally. By 1830, Texas had a population of 7,000 foreign-born residents, with only 3,000 Mexican nationals. And the Texans weren’t assimilated into Mexican culture…they demanded things that were more akin to their native culture. Like being able to hold slaves.

                Secretary of State Lucas Alamán, who wrote the 1830 law, said that “Texas will be lost for this Republic if adequate measures to save it are not taken. … Where others send invading armies … [the Americans] send their colonists”.

                Ultimately this resulted in the war for Texan independence.

                Similar concepts can occur when an immigrant population isn’t properly assimilated and holds a large majority in a local area.

                1. Do you think we are in any kind of danger of such a thing happening today?
                  Do you think Mexico is planning to invade?

                  1. Planning to? They already are, you just don’t want to use the term. Mexico is invading the US in the same way the US did back then: By illegal immigration.

                  2. “Do you think we are in any kind of danger of such a thing happening today?”

                    Secessionist movements by areas that have large non-native populations? Absolutely. Look at Donbas. A large Russian population that “breaks away” from the legitimate country of Ukraine. That’s how it works.

                    “Do you think Mexico is planning to invade?”
                    No. No more than the US had to invade Texas in 1835.

                    Let’s hypothesize for a bit, shall we? A 2002 poll by Zogby revealed that 58% of Mexicans think California (the US southwest) rightfully belongs to Mexico. Pretty substantial. Let’s assume for a second that Mexican Americans have similar views.

                    Mexican Americans currently make up more than 30% of the population of California. Let’s hypothesize they increase that % to 60%. Through any number of possible measures…increased international migration, cross migration from US states where they are uncomfortable. Now they are a solid majority. Let’s say they then hold a referendum to declare California as independent. They rightfully shouldn’t be part of of the United States.

                    What does the US do? Do they invade to retake California? Or let it go independent?


                    1. I can’t believe Americans have to justify having immigration laws and border security?? Canada gives special treatment to French speakers by law!! With respect to immigration we can have whatever laws we want so long as they don’t discriminate on race or religion…but it’s still fine to have pretexts in order to discourage groups we don’t want just like Canada expressly encourages French speakers. So immigration is a zero sum game—encouraging certain groups means fewer opportunities for other groups.

            3. Reconquista?

              JFC. Nativists are the worst.

              1. So the Seminole Tribe of Florida are the “worst”??

      2. Legal immigration is not an invasion, since the immigrants were invited in. Massive illegal border crossing is an invasion, in the sense of an intrusion.

        1. Not clear what massive means, and also invasion is not intrusion. They are different words, with different meanings.

          Closest you could come is in invasion of privacy, which is a term of art.

          1. You’re really living up to your rep at this point. Invasion isn’t an intrusion? Really, you’re going with that? How exactly does one invade without intruding, anyway?

            1. Intrusion is necessary but not sufficient.

              Don’t be an idiot.

              1. Yes, invasion is a subset of intrusion. “Incursion” is literally part of the definition of “invasion”; An “invasion” is an “incursion” by a large number of people.

                noun: invasion; plural noun: invasions
                an instance of invading a country or region with an armed force.
                “in 1546 England had to be defended from invasion”

                an incursion by a large number of people or things into a place or sphere of activity.
                “stadium guards are preparing for another invasion of fans”

                an unwelcome intrusion into another’s domain.
                “random drug testing of employees is an unwarranted invasion of privacy””

                I understand you desperately want to change the definition of “invasion” so that illegal immigration by huge numbers of people doesn’t qualify. But the meaning is what it is.

                1. stadium guards are preparing for another invasion of fans

                  Come on, Brett. I don’t care what Google says, this use is not actually an invasion, it is the use of a metaphor.

                  No argument illegal immigration is an intrusion. It is not an invasion. Invasions are armed.

                  1. America used illegal immigration as part of Manifest Destiny to conquer all of our North American territory.

                  2. “Secretary of State Lucas Alamán, who wrote the 1830 law, said that “Texas will be lost for this Republic if adequate measures to save it are not taken. … Where others send invading armies … [the Americans] send their colonists”.”

                    1. Immigrants are not colonists.

                    2. It’s like you think you own the English language, and can make any changes to it you need to, to help your arguments.

                      Tell me, when people were colonizing New England, did they perhaps immigrate there? And what do we call people who immigrate? Maybe “immigrants”?

          2. This is coming from a guy who thinks tourists walking around a capitol building taking pictures is an “insurrection”. …

            1. Tourists in camoflauge and helmets, with walk-in-talkies, moving in formation?

              These are your peeps, Volokh Conspirators. This is why your colleagues laugh at you when you propose the hiring of another movement conservative for a faculty position.

            2. Nothing says “I’m your typical tourist” like yelling “Hang Mike Pence” in the halls of Congress while other members of your “tourist group” build a gallows on the lawn.

              Happens on the time on holiday weekends; amirite?!

              1. Well, it’s significantly more “touristy” than attempting to set fire to the building. That’s got to count for something.

        2. Nope, Mexico saw the writing on the wall and outlawed more immigration AND slavery. Immoral Americans like William Travis broke Mexico’s laws by illegally entering Mexico and attempting to perpetuate slavery…he’s a really despicable historical figure but a “hero” of the Alamo.

          1. Hey Sebastian,

            You’re not allowed to say anything bad about those heroes, at least not in Texas. Try it and you get cancelled.

            1. I’m messin’ with Texas.

          2. “Illegal immigrant” or “Undocumented Citizen”?

      3. Sar. The American Indian failed to control illegals from Europe. Learn from what happened to them.

      4. The Afghans certainly seem blind to the allure of that culture.

        1. The culture of an occupier has a different feel than the culture of an adopted home.

        2. Exactly. If there was any interest in that culture, they’d have done anything they possibly could to get a visa, board a plane, and emigrate.

    2. Agreed = The Founding Fathers argument isn’t persuasive, and in any case they would have a whole host of other problems with how their ideas were twisted…

      The Founders’ ideas of immigration were shaped in most part by the needs of their time. Today is the 21st century, far removed from that time; our needs from immigration have changed. We need highly skilled and professional immigrants, admitted by virtue of their merit, the ability to support themselves, and by their potential to contribute positively to our country.

      I am all for legal immigration. In fact, I would allow 10MM annually through the front door, with the caveat that they are all skilled, self-supporting, and contribute.

      1. I think there’s a case to be made from the left for that policy as well. Illegal immigration is really exploitative of the illegals. Just pass a minimum wage and benefits law for all workers regardless of papers and watch the incentives dry up.

        Though separately, I don’t know if I want skilled to be the only thing we seek. Look at where our labor shortage is right now; it’s largely in 2 areas – high-skilled manufacturing, and low-skilled service.

        1. I’m not so sure we’ve got a “shortage” in either place, so much as those are the two places companies most want to suppress wages. Certainly, we have no shortage of people who’d be capable of doing the low-skilled service jobs if they felt like it.

          The supply of engineers and skilled trades is less elastic, of course, but it also responds to pay rates over time.

          But from an income inequality standpoint, the last thing you want to do is import more unskilled labor. That’s the part of the labor market where unemployment is highest and labor force participation lowest.

        2. Exploitation of illegal aliens is modern day slavery. It is wrong. That is why I want to punish the business owner who does that.

  4. I am curious, Professor Somin,
    What is your estimate for the number of people around the world who would enter the US if allowed?
    Is it permissible for a progressive foundation say Soros, to arrange travel to the US for those?
    How do you envision those millions settling in the US?
    Estimate please the cost of government financial support and private subsidization for the millions?

    Many thanks,

    1. My question is – and no liberal has been able to answer this without resorting to the standard hand waving – if our country is run by white supremacists, discriminates against people of color on a daily basis, where police indiscriminately beat them for no good reason, and women make 64 cents on the dollar, why in the world would anyone want to come here? The obvious answer is none of that is true (or the relativist answer is that it is just way worse in the rest of the world…)

    2. One billion Democrats would like to emigrate to the US to get on welfare.

      1. The problem is someone has got to pay for that and you can only borrow so much money from China, or print excess cash before your fiat currency goes belly up. Europe is finding this out the hard way and its coming to our doorstep real soon….

  5. “We also discussed how courts have (wrongly, in my view) exempted immigration restrictions from many of the constitutional constraints that apply to other exercises of government power.”

    Completely agree.

    The Constitution follows the Flag and federal officials must always be constrained by the Constitution – regardless where they’re actually working or who they’re dealing with.

  6. While I am in favor of more permissive immigration law, I would like to know why the EU countries bordering Belarus have been able to entirely lock down their borders and erect walls without condemnation. ME refugees are in a more desperate situation than CA illegal immigrants so I’d think the moral argument is even stronger there, while there isn’t a danger to national security in either case.

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