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02/08/2017

A Comment on Congress' Power over Aliens
MIchael Ramsey

Regarding my post on the source of constitutional power over admission of aliens, David Weisberg writes:
 
In a search for constitutional underpinnings supporting a travel ban, I think it's very helpful to consider Art. I, Sec. 9, para. 1: "The 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 [1808]...."  It is obvious from the formulation that Congress is presumed to have the power to prohibit migration or importation of slaves; there is no explicit grant of that power in that clause or anywhere else in the Constitution.  If Congress has a pre-existing power to prohibit the migration or importation of slaves, and that power is not explicitly granted to Congress for just that specific purpose, I think the most reasonable understanding would be that Congress has a power to exclude anyone at all from migrating to the U.S.  That power would, I think, go a long way toward justifying something like Trump's travel ban.
 
The Commerce Clause gives Congress the power to regulate commerce with foreign nations, but the Migration Prohibition Clause (if I can call it that) deals with both “migration” and “importation”.  I think there is an importance difference between those two concepts.
 
The O.E.D. definitions: 
 
Migration: “esp. of persons, a tribe: the action of moving from one country, locality, etc., to settle in another; also, simply, removal from one place of residence to another.”  This definition has been valid at least since 1646.
Importation: “The action of importing or bringing in. a.Commerce.  The bringing in of goods or merchandise from a foreign country[.]”  This definition has been valid at least since 1601.
 
No part of the definition of “migration” refers to any kind of commercial transaction.  If we assume the founders were careful with their language, I don't think they would have understood "migration" to be an instance of commerce with foreign nations.
 
Here are two different scenarios (I apologize for the graphic nature, but it’s unavoidable).  If someone captures or buys slaves abroad, and then "imports" them into the U.S. for re-sale here, that certainly is "commerce with foreign nations" within the Commerce Clause.  But, if I myself go abroad and buy a slave for my personal use back home, or I send someone to do that for me, and the slave is then brought to the U.S., and I never sell him, I think that is different from the first scenario and is probably outside the Commerce Clause.  I or my agent conducted commerce in a foreign nation (when the slave was bought), but I don't think that, in bringing him back to the U.S., I or my agent conducted commerce with a foreign nation.  I would think "migration" covers the second scenario, and that's probably why it's in the clause.
 
 Again, I don’t think there is any commercial aspect to the “migration” of people, so I don’t think the power of Congress to prohibit the migration of slaves is an instance of the commerce power.  It’s a different power, and the Migration Prohibition Clause assumes that it’s a pre-existing power of Congress.