Does the Constitution authorize immigration restriction?

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.

 

 

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

29 thoughts on “Does the Constitution authorize immigration restriction?”

  1. Interesting post. I am not sure that immigration was viewed as some complete positive though at the time. I believe England was still transporting criminals to the US up to the end of the Revolutionary War, and attempted to continue afterwards (but the final ship was turned back). I believe this is why Australia became the next destination for English transportees - the logical destination (the US) was out.

    Also, wouldn’t it be justified by the Necessary and Proper clause? To enforce the naturalization rules?

    1. Naturalization is a separate issue from immigration. We don't need to restrict immigration in order to restrict citizenship, although it makes it easier, I suppose.

    2. It's not listed as a complaint in the Declaration of Independence, so it could not have been anywhere near as big a deal as it is now.

  2. Tangential, but reading through the enumerated powers with my super amateur originalist glasses, I read "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" and I'm thinking, this should mean that Patents and Copyright should only be granted to the "Authors and Inventors", not their heirs. i.e., all exclusive Right must expire — at the very least — upon the death of the Author or Inventor — if not sooner.

    1. What if the Author or Inventor is an immortal corporation, like Disney? Come to think of it, the US Constitution does not SFIK explicitly allow the creation of limited-liability companies.

      1. The federal government does not create corporations. That has always come under state laws and prerogatives.

        1. Fair enough. However, the federal government supports and regulates the institution in all sorts of ways, from the tax code to the SEC. The Commerce power no doubt authorizes these innovations, but that's one of the elastic bits of the US Constitution that originalists don't like.

      2. This was addressed in a case challenging the most recent extension to copyright (95 yrs from publication for corporations or 125 yrs if unpublished, if I recall correctly). The ruling, in a nutshell, was that as long as the copyright was for a fixed limited time, Congress had not exceeded its authority in extending the term. I believe they were silent on the wisdom of the policy, but Congress apparently has the authority to make it. And given that the last extension was mostly in response to Disney lobbying, don't be surprised if there's another extension, oh, sometime right before Mickey Mouse becomes public domain.

  3. I just want to know how I can get "Letters of Marque and Reprisal." At some point I would like to retire and these sound like a good part-time gigs.

    1. As I understand it, the licensed activity is risky as well as profitable. The victims may fight back. Grapeshot is a great leveller.

  4. I am so glad to live in a parallel where we do pass Constitutional amendments when we need to deal with changing circumstances. I am a professor of Constitutional law at a major law school, where my students this morning are discussing whether the 432nd Amendment conflicts with the 273rd. I am going to wait and see which of them sees that the key to the question is to be found in the 317th Amendment, and that student will receive an A.

    1. You laugh, but national, public consideration of amendments, instead of relying on a bewildering assortment of legal cases decided by small groups of old white guys, would help to head off such confusions. Of course, that would assume a democracy.

  5. IANAL, and especially IANAImmigrationL. But it sort of looks like this clause: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…" could easily be paired with this clause: "To establish an uniform Rule of Naturalization…" to get us to the authority to limit the number of people who might, during a specific interval, be eligible to become naturalized citizens, and *perhaps* to limit the number of people in the US to become eligible for naturalization…

    1. How is it "necessary", other than to hide the racism involved in restricting naturalization?

  6. "…nine elders doing Talmudic interpretation." A small part of the problem is that because of the absurd absence of term limits on SCOTUS Justices, Presidents have an incentive to pick youngsters in good health with long life expectancy. Ginsburg was appointed at age 60, all the others were younger. Thomas was only 43. I write as one still vainly seeking wisdom at 71.

  7. What is wrong with: establish an uniform Rule of Naturalization - OED: admittance of a foreigner to the citizenship of a country.

    Which rule includes restricted numbers for citizenship, if desired. And part of the rule says that if you are not naturalized you have a form of registration called a visa by which you can have admittance, but not yet citizenship. Then States could regulate the work of folks here on a visa if they wanted to. If such regs interfered with commerce between the states then it becomes a federal issue.

    1. We knowingly let in plenty of people who have no intention of becoming citizens. Besides, are we going to publicly admit that we exclude Mexicans or Guatemalans so that they can't become citizens?

    1. The colonists hoped for help from the king against Parliament up until the point when blockades and armed conflict broke out. Then they turned on the king. The Declaration of Independence has a bill of particulars against the king, not Parliament.

      1. I haven't read Nelson's book, though I did read a very positve review of it in NYREV by John Brewer. The summary on the Harvard UP website (see link above) suggests that those of a royalist bent used their principles in the design of the Federal and state constitutions. They didn't give up their basic royalist ideas about executive authority after the Declaration:

        "Leading patriots believed that the colonies were the king’s own to govern, and they urged George III to defy Parliament and rule directly. These theorists were proposing to turn back the clock on the English constitution, rejecting the Whig settlement that had secured the supremacy of Parliament after the Glorious Revolution. Instead, they embraced the political theory of those who had waged the last great campaign against Parliament’s “usurpations”: the reviled Stuart monarchs of the seventeenth century.

        When it came time to design the state and federal constitutions, the very same figures who had defended this expansive conception of royal authority—John Adams, Alexander Hamilton, James Wilson, and their allies—returned to the fray as champions of a single executive vested with sweeping prerogatives. As a result of their labors, the Constitution of 1787 would assign its new president far more power than any British monarch had wielded for almost a hundred years. On one side of the Atlantic, Nelson concludes, there would be kings without monarchy; on the other, monarchy without kings."

  9. I've been "trolling" right wing web sites with this challenge for several years, except that I really am for open borders and lean originalist. The response so far, crickets, except for one guy who lamely referenced the naturalization clause. It's unbelievable to me that a policy with such wide-ranging impact is totally outside the constitution.

    But it's even worse than the fact that immigration restriction is not an enumerated power. Immigration restriction directly violates the right of association of American citizens who wish to meet, communicate and/or contract with non-citizens face to face.

    The case of drug laws is even worse, since these were enacted in the face of the precedent that had been set when it was decided that prohibition of alcohol required an amendment.

    1. I used to think that about the Prohibition Amendment, but at least according to Okrent that was a tactical decision by the Temperance forces to try to convert what they knew would be a transient majority into what they hoped would be a permanent policy change. But I agree that neither the Commerce Clause nor the Treaty Clause can stretch to cover the CSA, even though I also think that the regulation of recreational psychoactives ought to be national rather than state-by-state.

  10. Why wouldn’t this power be included in the president’s power to make foreign policy? After all, if you can’t “restrict” immigration, can you defend yourself as a country at all? What would be our excuse for not just letting whoever come in and take all our stuff? (I am speaking in context of a war … *not* trying to say that immigrants come here to take our stuff… these days, you have to *actually make these things clear.* Interesting times, I guess it’s called.)

    But I don’t have my little Constitution book with me.

    What is really on my mind this moment … and as usual, it’s a little bit random but again as usual, I don’t know who else to ask … how do people feel about Disqus? Ever since they are making everyone renew their agreements, I don’t know what to think. it’s a little maddening. I skimmed their policies but I don’t know how these things *work.* Also, how come merchants now have my email account whenever I use my debit card? Did I, um, agree to that?

    Or should I just give up and put on a foil hat already?

    1. Yes, you can play all kinds of games to force "powers" to fit with the Constitution. But the Constitution was set up as a contract with the citizens for limited government. It is against the original understanding and the spirit of the contract for the government to be looking for loopholes whereby they can circumvent the agreement. If there some "power' that it is so important to grant the government, there is an amendment mechanism for that.

    2. It's not Disqus. The new EU General Data Protection Regulation (GDPR) has forced providers of online services in Europe to seek explicit consent for their personal data harvesting. It doesn't apply to non-Europeans, but in practice it's simpler for most companies to get the same approvals from everybody. Extraterritorial reach is not just for American law.

      1. Yes and although in the short term it is inconvenient … (I am crawling through Disqus’ privacy policy, as I can only stand to look at it for about a half hour at a time … I can’t *wait* until there is a group who would do this for me! someday soon, I’m sure) … I am glad about what Europe has done on privacy. I wish it worked that way for cosmetics too! and food. Boy was I shocked to find out I’ve been poisoning fish with my spf all this time. Huge bummer! Believe it or not, I could bore you at some length about all this. Someone should make a website called Stuff from Europe. They’d have to list the ingredients though bc I don’t trust that the stuff sold here would be the same. Anyhoo.

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