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Justice Scalia and Congress’s Power to Regulate Immigration

In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas.  But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds.  One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration.

In Arizona v. United States, Justice Scalia started strong, initially questioning the federal government’s general authority to regulate immigration.  That also led him to recognize, again rightly in my view, that the states would then enjoy more power over immigration.

But unfortunately Justice Scalia then made an enormous mistake.  While he recognized that Congress first passed a general immigration law only in 1882, he wrote:

I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States.  As this Court has said, it is an “‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’”  Fong Yue Ting v.  United States, 149 U. S. 698, 705 (1893). . . . That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he 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 . . . .”

This is extremely weak.  First, what international law says about the United States is not the relevant question.  What is relevant is what the Constitution says about the matter, and the Constitution does not give Congress authority over immigration.  Congress does have the power to enforce offenses against the law of nations, but that would not confer power to regulate immigration (since immigration is not an offense under international law).  Second, there is no conflict with international law.  The entire immigration power would be shared between the federal government and the states, which would meet any international law expectations for the country.  Third as I have stated before, the Migration and Importation Clause does not acknowledge a general immigration power, but is best read as merely recognizing that Congress has some power over immigration through its Commerce Clause authority.  Congress could, for example, regulate ships that are coming from other nations and pass restrictions on immigration as to those ships.  Congress could also regulate immigration coming through the territories (which was a large part of the US in the early years) through its power to pass legislation as to the territories.

Claiming that the federal government possesses an immigration power through an inherent attribute of sovereignty is a stake in the heart of the enumerated powers and the Tenth Amendment.  This isn’t even reading an acknowledged power broadly, like the Commerce Power.  It is just making up a new power where there is no textual indication.  It is hard to believe that the Tenth Amendment does not forbid this.

Interestingly, Justice Thomas did not join Scalia’s opinion, even though Thomas largely agrees with Scalia on the preemption questions in the case.  One interesting possibility is that Thomas did not join Scalia because Thomas does not agree that the federal government has, as an original matter, the power to regulate immigration as part of its inherent sovereignty.

Scalia’s position in this case is especially unfortunate, as he had an alternative ground to found his position: judicial precedent.  Scalia could have simply argued that judicial precedent had recognized such a power for more than a century and therefore he would follow it.  But he did not do that; instead, he addressed the original meaning issue and failed miserably.

Even Homer nods, and one should not make too much about this mistake.  Justice Scalia was a giant and one can only expect so much.  But if we are going to discuss his problematic opinions, this was one of the worst from an originalist perspective.

Reader Discussion

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on October 12, 2016 at 12:48:31 pm

I know that Ilya Somin is pushing this idea that there is no Congressional power over immigration, but I hadn't really seen it promoted elsewhere (even in originalist circles). I hate it when arguments are made that "every sovereign nation has the power" and so we need to imply that Congress has this power. Every sovereign nation has the power to declare war, but that didn't stop the Founders from explicitly enumerating that as a power of Congress. Stronger, though, is the idea of Art. I, §9, which prohibited Congress from banning the importation or migration of slaves prior to 1808 and the immediate banning of such migration in 1808. That at least implies that "prohibiting" (as the clause says) of "migration" is within Congress's powers after 1808, probably under the foreign commerce clause. The only reason this doesn't also apply between states is the idea of natural rights of freedom of movement which applied to citizens and the Privileges and Immunities Clause which implied a right of interstate travel.

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Devin Watkins
on October 12, 2016 at 13:40:33 pm

I have been writing about this issue for a long time. Congress has some power through the Commerce Clause (and the territories power), but not complete power. The Commerce Clause accounts for Article I, Sec. 9.

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Mike Rappaport
on October 12, 2016 at 15:35:18 pm

I don't buy it!

1) Clearly, a nation that cannot control who enters its borders is not a nation AND it is an ESSENTIAL and FUNDAMENTAL attribute of Sovereignty.
Well, let's see: The Constitution does not mention following International Law, does it? so I guess, there is no requirement to adhere to it - it is not an aspect of sovereignty, I suppose!
2) The recognition in Art 1 Sec 9 of Congress power to "prohibit" is a clear indication that Congress does have the power to control immigration. If congress did not possess such a power than there would be no need to EXPRESSLY limit that Congressional power for a period of some 20 years or so.

Let's see: You don't have the power to do this, BUT i am going to not let you use that power which you do not have for 20 years; then you are free to use that power which you do not possess for as long as you like.
That'll show 'em!

3) Rather convenient of the "open-borders" libertarian Somin, who argues against any restriction upon the free movement of the WORLD'S peoples, to assert that congress has no power over immigration.

Hey, I got it! Let's give the power over immigration to LAW PROFESSORS - that'll REALLY teach 'em!

Lastly, I guess that is what we can expect from "engagement" type jurists - Hey, I like open borders - let's see, "Oh yeah, I don';t see anywhere in the constitution that Congress can regulate immigration"

Now that IS engaging!

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gabe
on October 12, 2016 at 16:13:55 pm

1) Congress does have the power "To define and punish . . . Offences against the Law of Nations" when combined with the treaty power seems that the Constitution does mention following International Law.

As to immigration, I tend to think that Rappaport is more likely to be right than Prof. Somin (having gone back over the articles I could find written by him about the subject). Congress, under this theory, doesn't possess a plenary power of immigration as such, but does control the regulation of the instrumentalities of commerce including interstate highways, planes, and ships including the ability to prohibit their use. That's not a complete control of immigration because people can still walk through the border (of which it is up to the state to decide if they will prohibit it).

The other modern view would include any movement of people and goods across borders within the meaning of commerce which congress could then prohibit.

You could probably make a strong argument for either of these, but the idea that the government cannot prohibit immigration on ships or planes (as Prof. Somin advocates) seems wrong to me.

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Devin Watkins
on October 12, 2016 at 17:05:12 pm

Devin:

You are correct. forget the Int'l Law - I was grasping for an example.

I honestly think that Somin is *grasping* for something to support a predetermined position.

It is clear that under the *New* Commerce Clause, the congress can regulate any thing it has a fancy to regulate (see O-care, etc). Yet, it would seem apparent that even under Art 1 Sec 9, the congress has that power. If it did not, there would be no need to place a time limited restriction on the power.

As to engagement discussions we have had: Somin's acrobatics here are what concerns me about "engaged" jurists. It strikes me that Somin is engaging his imagination NOT the Constitution.

The question is this: Under an original understanding of the Constitution, did Congress have the power to regulate immigration?

If one can "engage" AND give fair weighting to original understanding, then fine; if not, then we are just as much of a living constitutionalist as those we decry.

seeya

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gabe
on October 12, 2016 at 19:13:48 pm

Dear Mr. Gabe,

I agree with your #1, as it appears obvious and absurd that a sovereign nation wouldn't posses this, and with your #2, because it demonstrates the very good logic and common sense presumed to be operational in the Constitution by its Framers, and the absurdity created by its absence; I have no opinion on #3 but its sounds plausible

My Conclusion: Scalia was a practical originalist who was capable and willing to depart from originalism when the dictates of logic and common sense would make a strictly originalist interpretation result in an absurdity.

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Paul Binotto
on October 12, 2016 at 20:05:36 pm

I must admit to being a little frustrated with these comments. I addressed all of these criticisms in my original post. Concerning the sovereign nation point: To be more explicit, the United States, as a sovereign nation, does have complete power as to immigration. Some of it is possessed by the national government and some by the states. No sovereign nation would deny itself the power to regulate education. Ours does possess that power -- it is possessed by the states. Perhaps you disagree with this argument, but I did not ignore the point.

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Mike Rappaport
on October 12, 2016 at 20:27:58 pm

Not looking to argue here BUT, Perhaps, it was your phrasing:

" and the Constitution does not give Congress authority over immigration. Congress does have the power to enforce offenses against the law of nations, but that would not confer power to regulate immigration (since immigration is not an offense under international law)."

"Third as I have stated before, the Migration and Importation Clause does not acknowledge a general immigration power, but is best read as merely recognizing that Congress has some power over immigration through its Commerce Clause authority."

These comments would, at best, allow for some doubt as to the validity of any assertion recognizing congressional authority over immigration.

Agreed that the States have *some* power over immigration - or to be more precise DID as is evidenced by Federal Executive and Judicial actions / determinations in recent years. Indeed, that colorful character Sheriff Joe Arpaio (sp?) is currently facing indictment FOR enforcing immigration laws via patrols of the border.

I do have a question for you Professor. It is clear that States have power over citizenship within their own States. But is it not a separate question as to whether a "sojourner" may enter within the *composite* body of States. Clearly, once here, a sojourner may move within / about the various States without a particular State imposing greater restriction. But the question is: Who has authority over initial entry into the collective whole?
Also, a) is there such a thing as State citizenship without US citizenship. (Yep, I know the arguments of the neo-Confederates and early Colonial practice / expressions of State citizenship - "I am a citizen of Virginia, etc) and b) is it not the Federal Government that interfaces with foreign governments on matters of immigration (or at least it is today).

It is unclear from the above comments. Then again, I freely admit that my mind may have also been colored by the judicial determinations, executive actions of the past 50 years and find it hard to envision any *practical* State power over immigration. My bad!!!!!!

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gabe
on October 12, 2016 at 20:39:13 pm

Engagement just says that judges should try to decide for themselves what the meaning of the Constitution is. It doesn't by itself say that any interpretation is correct. If Somin is, as you claim, determining the outcome he wants and then looking for the constitutional justification to support it, that would NOT be an example of engagement. (PS. having known Prof. Somin for years, he was my con law prof, I don't think this is actually the case)

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Devin Watkins
on October 12, 2016 at 20:46:12 pm

Respectfully, I am surprised to learn from you and from Gabe, that the states do possess "some" power over immigration. Again respectfully, while I am neither a lawyer or the accomplished constitutional scholar as you quite obviously are, it seems completely untenable and unworkable that their should exist 50 (51 to include the Federal) immigration policy, and as Gabe alludes to more colorfully than I, surely this would result in the restriction of a legal immigrants rightful free movement across state lines.

In my view, in a democracy such as the United States, common sense would dictate that once you are in, you are all in.

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on October 12, 2016 at 20:52:32 pm

I know what you're saying, but to be fair you didn't explain your opinion on exactly what powers congress does have (you just talked about what powers it didn't have attack Scalia's logic, and how the slave trade clause only implied some powers for congress). It wasn't until I went back and read your previous pieces explaining your interpretation that I understood what you were getting at. And it's a fairly rare understanding of the clause as far as I am aware. I went through all of law school with professor Somin as my conlaw professor (who is clearly anti-congressional power of immigration) and I hadn't even heard of this interpretation before. The link you do have to the prior post seems, from the text, to be about the Migration and Importation Clause rather than directly about the meaning of the commerce clause for immigration (which I know you do talk about in that article). I wasnt reading this blog 4 years ago when the first posts on the subject came up.

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Devin Watkins
on October 13, 2016 at 00:07:21 am

Justice Scalia did not err in Arizona v. United States. The Constitution does indeed grant Congress power to prohibit or regulate immigration, in the Law of Nations Clause. Unlawful immigration is indeed an offense against the law of Nations, which is not the Same as “international law”, although it is an important part of it. Most of the field we call “international law” today is jus inter gentes, “law among nations”, that is, treaties and conventions. The “law of nations” was jus gentium, or the common law of war, peace, diplomacy, relations between enemy nations and with neutral nations, and, yes, trespass into nations. The territory of a nation was considered its sovereign dominion, over which it had the exclusive power to make law. It owned that territory, granting limited privileges to use it various private parties called estates.

The major theme of the English common law was the law of trespass. Indeed, most common law writs for suits in tort were variants of the writ of trespass. Entry into a national territory without permission was a trespass. Indeed, trespass is the basis for most of the offenses against the law of nations. To attack a nation’s sea vessels was a kind of trespass on the national territory, which included ships at sea. To attack a nation’s diplomats was a trespass on its territory, represented by those diplomats. To blockade a port was trespass on the territorial right to enter and leave a territory. War and peace were ultimately all about territory.

From the authority to punish offenses against the law of nations it is only a short step to the power to regulate entry and entrants, who could be allowed to enter for restricted purposes and restricted periods of time.

What Congress lacks the power to do is regulate the movement of emigrants. It cannot forbid someone to leave the country, unless that person is a fugitive from justice and personal jurisdiction has been established.

Hugo Grotius does not specifically address unlawful immigration, but it implicit. Thus, “an owner may forbid any one to commit a trespass upon his lands ...”. XXVI http://constitution.org/gro/djbp_306.htm

From Vattel § 177 http://constitution.org/vattel/vattel_01.htm:
The nation ought to put itself in such a state as to be able to repel and humble an unjust enemy: this is an important duty, which the care of its own perfection, and even of its preservation, imposes both on the state and its conductor.

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Jon Roland
on October 13, 2016 at 08:07:10 am

Mr. Roland,

Very interesting contribution to the discussion. When you state, "What Congress lacks the power to do is regulate the movement of emigrants." - are you specifying that Congress hasn't the power to regulate the movement (leaving) of emigrants beyond, outside the borders of its jurisdiction, but that it is implicit that Congress does have the power to regulate the movement of emigrants within its jurisdictional borders?

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Paul Binotto
on October 13, 2016 at 10:50:00 am

Mr Roland:

Thank you for that. this seems eminently sensible and consistent with historical practices / attitudes.

And yes, during the early years of the Republic, immigration law / oversight was either lax or non-existent; however, the *political* decision to foster immigration and the absence of a strict criteria for such immigration does not imply that the power a) does not exist or b) that it has been relinquished by the holder.

To assume otherwise is suicidal.

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gabe
on October 13, 2016 at 11:40:39 am

Devin:

I must defer to you re: Somin and engagement "bias".

It is, however, hard for me to understand how someone with a mind so sharp and at times *crisp* as Somin's can reach such a conclusion.

Then again, perhaps, he IS an open borders type BECAUSE he so constructs the constitution.

I go with Lincoln on this: The constitution is not a suicide pact - failure to regulate who may enter is suicidal (or at least permits suicide bombers entry).

take care

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gabe
on October 13, 2016 at 11:43:56 am

Oops, left out something:

Should read:

"...does not imply that the power a) does not exist or b) that it has been relinquished by the holder, [as some would allege].

I was not taking issue with anything Mr toland had said.

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gabe
on October 14, 2016 at 10:40:50 am

The principal error of Scalia's reasoning is his misunderstanding of what "naturalization" means. If
(1) the verb "to naturalize" means "to admit aliens to the rights of citizenship," and
(2) such admission could happen gradually, and
(3) such rights include the privilege of travel and residence,

then Congress's naturalization power includes the right to admit, or not admit, aliens to travel or residence in the United States.

I think there is substantial, but not overwhelming evidence that the Framers affirmed each of these three propositions.

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David Upham
on October 14, 2016 at 13:50:12 pm

David:

This seems quite sensible.

A question (or two):

1) Why just substantial and not overwhelming?

2) Does this *under-whelming* have to do with actual practices during the Colonial /Drafting / Early Republic periods when the young Republic NEEDED new immigrants?

If #2 is true, can it not be said that a power held in abeyance FOR a *specific purpose* does not negate the premise of the power.

Just thinking out loud here!

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gabe
on April 10, 2018 at 14:11:25 pm

Thank you. Though I dispute the Commerce has any power over the matter at all as slave importation really isn´t immigration. In any case, the Founders never would have propsed it, never would have signed it and would be perplexed by our believe that it is Constitutional.

The fundamental issue here is that WE ARE NOT A NATION. We have a Federation so there is no "inherent" powers of sovereignty at all. it is right there in Federalist 39.

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John Ashman
on April 10, 2018 at 14:13:37 pm

Gabe, you are just making up stuff. The US is a Federation, not a "nation". Read Federalist 39. The power over immigration would have allowed the Feds to evict any slave, anywhere, any time. We wouldn´t even have the US if this were in the Constitution. No Founder ever proposed federal immigration laws.

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John Ashman
on April 10, 2018 at 14:16:04 pm

So if you ever need a shoulder to cry on because virtually everyone is frustratingly obtuse, I am here for you.

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John Ashman
on April 10, 2018 at 14:30:37 pm

Ugh . Nice conflation, but in now way based in any actual understanding of the Founders´public intent.

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John Ashman

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