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Does the Constitution authorize immigration restriction?

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If there were Pulitzer Prize for trolling and subtweeting, Matt Yglesias would probably be the first recipient. Matt decided to have some fun at the expense of right-wingers who (1) claim to believe that judges should interpret the Constitution according to the original meaning of the text rather than flexibly to adjust to new conditions and (2) want to enforce, or even tighten, existing immigration laws.

He posted a thread on Twitter, cleverly and accurately parodying the standard “originalist” patter:

Personal policy preferences aside, as an originalist who calls balls and strikes rather than legislating from the bench, my staring at old texts and series of ouija board sessions with James Madison leads me to the conclusion that ICE is unconstitutional. I understand that conservative “living constitutionalists” believe that changing circumstances require us to create an agency that the Founders would have deemed terrifying and incomprehensible, but the right solution is to pass a constitutional amendment. Actually, not only is ICE unconstitutional the constitution pretty clearly requires open borders, authorizing congress to set rules about naturalization but not to limit entry into the country.

U.S. Constitution - Article 1 Section 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Now, a sensible person would have chortled and perhaps retweeted the thread, and then forgotten about the whole thing. But, as my friends know, I am nothing like a sensible person, and have at times a frighteningly literal mind. I also dabble in Constitutional interpretation, though on no more than an advanced-amateur level.

So - having noticed that Yglesias’s bit of pseudo-originalist reasoning had, as he intended, reached the clearly absurd result that a policy of completely open borders is written into the Constitution, and that neither the President, the Congress, nor the courts have any legitimate right to limit immigration until and unless an amendment to that effect is adopted by two-thirds votes in both Houses and then ratified by three-quarters of the states - I couldn’t avoid asking myself, “But where’s the flaw in the supposed reasoning?”
If, as the originalists keep reminding us, the Constitution gives the federal government only strictly limited, “enumerated” powers, what provision could be interpreted to authorize immigration restrictions, let alone the creation of a massive national police force entitled to stop people at random within 100 miles of any coast or land border and make them prove their right to be in the country?
As you can see from Art. I, Sec. 8 above, restricting immigration is clearly not one of the “enumerated powers” of the Congress, unlike - for example - passing anti-piracy laws and granting letters of marque.  More to the point, naturalization laws are among the enumerated powers, making the omission of immigration restriction stand out as a “loud silence.”
A few other provisions seemed promising, but didn’t really pan out. For example, Article 9 forbids the Congress from interfering with “migration or importation” before 1808, but that was clearly about the slave trade, and works with the anti-amendment provisions of Article V to prevent its abolition before that year.  It would be a big stretch to infer from it  a general, unenumerated power of Congress over immigration.
So: a puzzle.
I therefore did what any amateur who isn’t a complete fool does when he’s in over his head: I called on a professional. Eugene Volokh of UCLA Law (and the Volokh Conspiracy) - who, as it happens, got me into blogging just before the outbreak of the Iraq War - actually does Con Law for a living, and is at least original-intent-curious, so I sent him a note posing the question as best I could. Since Eugene’s scholarship hasn’t touched much on immigration, he referred me to a specialist, Michael Ramsey of the University of San Diego, who (having clerked for Justice Scalia) is among the originalist aristocracy and who has thought about the question.
Prof. Ramsey was kind enough to respond, in part:
There is no definitive originalist account.  There are maybe four main views:

(1) Congress has comprehensive power based on the idea of national sovereignty. That’s basically the S.Ct.’s view but it’s a tough sell to originalists because it doesn’t derive from the text.

(2) Congress has essentially comprehensive power based on the sum of its enumerated powers, especially naturalization and commerce. I think that’s the conventional originalist view.

(3) Congress has some power based on the sum of its enumerated powers but that’s fairly incomplete, and the balance goes to the states.

(4) Congress has some power based on the sum of its enumerated powers but that’s fairly incomplete, and the balance goes to the President on the basis of the executive power. (Here’s Ramsey’s own exposition of #4.)

Note that the derivation of un-enumerated powers from foggy concepts such as “the idea of national sovereignty” is precisely the sort of thing originalists love to make fun of. (I’m not sure whether it would count as a “penumbra” or an “emanation.”)  It’s been suggested that the President has a generalized “executive power” including anything that was a Royal prerogative under English law, and it’s tempting to believe that, at least when your party holds the White House.  But whatever the merits of that idea, it’s hard to label “originalist” an interpretation that every one of the Framers (Hamilton possibly excepted) would have rejected out of hand. Prerogative was very much a Tory idea, and the Revolution was almost entirely a Whig project.

Equally far-fetched is the notion that the “original meaning” of the Commerce Clause allows the Congress to justify any law by some hand-waving argument about an impact on commerce, as opposed to the plain meaning of the text: allowing Congress to regulate commerce itself. Yes, immigration increases the supply of labor and the demand for goods and services; it therefore influences both factor and product markets. But if that brings immigration within federal power, then what isn’t within federal power? Would an American version of the Chinese “one-child” policy pass constitutional muster? Or compulsory retirement at age 65? Or a law restricting the practice of law to people whose parents practiced law? All would restrict labor supply in interstate commerce, just as immigration restriction does.

Prof. Ramsey pointed me to Ilya Somin of George Mason (another Volokh Conspirator) as an exponent of view #3 above. But (based on the essay to which Prof. Ramsey referred me) Somin - who supports virtually open borders on both moral and practical grounds - seems to be a thoroughgoing skeptic about Congressional power in the area, and doubts that the Fourteenth Amendment would allow individual states to enforce their own restrictions. So Somin’s view is fairly close to the one adopted ironically by Yglesias.

The problem for originalists here is that, in the Eighteenth Century, immigration (by contrast with the slave trade) was regarded as a boon rather than a problem. The Framers didn’t give the Congress or the President the power to restrict it simply because it didn’t occur to them that restricting it might be regarded as desirable, just as they allowed the creation of a navy, in addition to an army, but not an air force, because they couldn’t imagine aerial combat. A reasonable person might say that that was then and this is now, and that the federal government’s enumerated powers ought to be stretched to cover the contemporary situation.  But that’s exactly the view originalists hate when it comes to same-sex marriage.

As noted, this isn’t a problem for Somin, because in this case his constitutional views support his policy preferences. But everyone else here seems me to be working backwards: starting with the proposition that surely there must be some power to limit immigration, and searching for something in the text that could be used to allow for that, precisely as they mock liberal justices for having done to discover a general right to reproductive freedom - overruling the police power of the states - that would have surprised the hell out of the authors of the Fifth and Fourteenth Amendments.

What’s absolutely certain is that not a single elected official who preaches originalism and “limited government” and “not legislating from the bench,” and who also supports restrictive immigration policies as a matter of economic policy (or applied racism), will be bothered for a millisecond by the fact that the Constitution as written needs to be bent all out of shape to make it confer that power on the federal government.

To paraphrase a rival’s comment on Gladstone, I don’t object to the right wing’s always having the ace of trumps up its sleeve, but merely to their pretense that James Madison put it there. Originalism is bosh, for the same reason any comprehensive theory of constitutional interpretation is bosh. As Louis Hartz one said, you can’t really run a country on the basis of nine elders doing Talmudic interpretation.

Update Prof. Somin points to drug laws as another instance where social conservatism conflicts with originalism.

 

 

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