Somin on Limiting Immigration

Over at Open Borders, Ilya Somin argues that the original meaning of the Constitution restricts Congress’s power to limit immigration.  I am broadly sympathetic with Ilya’s argument, but I believe that the Constitution’s original meaning does not support libertarian type conclusions as much Ilya seems to suggest.  It is my experience that the Constitution’s original meaning usually cuts in a number of directions and balances competing considerations.   Let me address three issues.

Congress’s Limited Powers.  Ilya argues that the Constitution does not give Congress the power to regulate immigration as such.  I agree.  But I think that Congress does enjoy a variety of powers that allow it to regulate various aspects of immigration.  In this article, John McGinnis and I discuss various ways that Congress might enjoy some powers over immigration, but not complete authority.  In particular, I believe that Congress can regulate the crossing of borders to sell a commodity and that it is quite possibly the case, based on the analogy to navigation, that Congress could prohibit the movement of persons on international (and interstate) highways.  That would still leave as beyond Congress’s powers the movement from one state to another across other passageways.  Congress would also have had significant power over the territories, which would have included large portions of the United States.  Congress may also have shared powers with the President – a shard power that requires both the President and the Congress to agree on restricting immigrants as opposed to the current arrangement where the President must follow Congressional directions if they are nondiscretionary.  See here at footnote 45.  Finally, Congress might have some powers over immigrants through its war, foreign affairs, and international law powers.  Thus, while Congress could not pass the comprehensive immigration laws it passes now, it would have significant pockets of authority.

State Powers.  Ilya neglects that if Congress did not have these powers, then the states would have them.  See Mike Ramsey on this as well.  In many cases, this would allow strongly anti-immigrant states to block immigration.  At the same time, it would allow pro-immigrant states to allow immigrants into a border state, and once there they might use the interstate highways to travel to other states.  Allocating prohibition authority at the state level is often more libertarian because comprehensive action then requires approval by all or most states and that seldom occurs without a consensus.  This, of course, would not have troubled the Framers, since at that time the country embraced immigrants.  See footnote 45 again.

Lost Amendments.

Ilya notes that not until the Chinese Exclusion Act of 1882, which was popular due to widespread anti-Chinese prejudice, did Congress adopt a significant law banning migration.  That law was approved by the Supreme Court based on reasoning that blatantly ignored the limited enumerated powers of Congress.  But suppose that the Supreme Court had enforced the original meaning.  Given the popularity of the Act, there might have been a good chance that a constitutional amendment would have been passed that would have given the Congress this authority over immigration.  If that is the case, then the Constitution would deny the federal government power over immigration only because the Court wrongfully approved it.

In the end, I agree with Ilya that the freedom of immigration would probably be more protected if the original meaning of the Constitution were followed.  But I think the story is more complicated than at first it seems.

Reader Discussion

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on March 25, 2013 at 12:32:03 pm

Might this be relevant? The Constitution, in one of its two unamendable clauses in Article V, gives a future Congress the power to limit importation of slaves. That in turn surely points to some enumerated power allowing this regulation, and this power would extend to free persons, as well as slaves. Besides the text of Constitution, note Jefferson and Hamilton on the need to restrict immigration in order to prevent anti-democratic elements from subverting the new republic.

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Ken Masugi
on March 28, 2013 at 11:36:46 am


Exactly, Gouverneur Morris, from a very pro-immigration state of Penn., worried that his state's policy would be trumped by the implications of this clause "migration" and the naturalization power. And this clause was raised, strangely enough, on both sides of the debates over the Alien Act. Opponents alleging that 20 years hadn't yet expired before the Feds. could regulate such migration, and supporters insisting that the Clause implied the power to remove.

More importantly, the naturalization power was originally understood as the power to admit aliens to the rights of citizenship and not just the status (as today "naturalization" is defined)--which rights included the right to travel, reside, and engage in commerce--an understanding reflected in various "naturalization" laws, Blackstone's definition, the placement of the Naturalization Clause in Art. I among a bunch of economic powers, the ratification debates, and the debates during the First Congress over the First naturalization act.

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David Upham
on April 07, 2013 at 12:21:31 pm

Prof. Rappaport makes the Jeffersonian argument. That states have the classic powers of soveregns--including regulating immigration, prosecuting people for sedition (see, eg. his Second Inaugural address on that), etc. He also, of course, denied that the U.S. Constitution gave the federal government the legal authority to purchase territory. "Let us not make it [the Constitution] a blank paper by construction," he wrote at the time--but as an amendment would be difficult/ was unlikely to pass, he did it anyway. Necessity trumped his overly narrow constitutionalism.

There are also all the precedents set by his embargo, but that's a slightly different topic.

Hence, when it comes to foreign powers, history vindicates the Federalists. The need to limit the right of the U.S. government to restrict the slave trade implies that the U.S. government, under the Constitution, had a presumptive right to regulate immigration, even absent a specific enumeration.

That idea grows, in part, out of the principles of 1776. If government is created by the consent of the governed, ratification is a social compact. Hence the right to decide who may join the compact is an essential right, for absent that the powers that be could import a new people to transform the voting citizenry into something it would like better.

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Richard S

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