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03/19/2013

Ilya Somin on Congress' Immigration Power
Michael Ramsey

At Open Borders, Ilya Somin: Immigration and the U.S. Constitution.

Professor Somin argues, among other things, that the Constitution's original meaning does not give Congress general power to restrict immigration: 

The detailed enumeration of congressional powers in Article I of the Constitution does not include any power to restrict migration as such, even though it does include the power to make laws concerning the “naturalization” of foreigners and “regulate Commerce with foreign Nations.” The Naturalization Clause does not create a power to prevent foreigners from entering the country. It merely allows Congress to set conditions for the grant of citizenship.

The scope of the power to regulate “commerce” has long been a source of controversy. But at the time of the Founding and for many decades thereafter, the dominant interpretation was that it merely gave Congress the power to restrict trade and other commercial transactions, not to forbid movement as such. …

Congress can restrict the entry of some foreigners by using its other enumerated powers. For example, the power to declare war and to spend money for the “common defence” includes a power to forcibly restrict entry by enemy spies, terrorists, and soldiers. The power to “define and punish” offenses against “the law of nations” presumably allows Congress to restrict the movement of pirates and other violators of international law. But there is no general enumerated power giving Congress the authority to ban the entry of people simply because they are foreign nationals.

I think his argument may well be correct.  But if it is, I think it quite plainly leads to a result Professor Somin does not mention, and which the folks at Open Borders do not want hear:  it would leave to the states the power to restrict immigration.

(Via Volokh Conspiracy)