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05/24/2017

Ilya Somin Responds to Rob Natelson on Federal Immigration Power
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Congress’ power to “define and punish” violations of “the Law of Nations” does not give it authority over immigration (responding to this essay by Rob Natelson).  From the introduction:

The law of nations argument is creative. But it ultimately fares no better than more conventional rationales for a general federal power over immigration.

Eighteenth century understandings of the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit. But the fact that international law recognized the exclusion of aliens as a power of sovereign states does not mean that a violation of a national law restricting migration is thereby a violation of the law of nations. Blackstone and the other eighteenth century writers cited by Natelson make the former claim, but not the latter.

And from later in the post:

A slightly different variant of the law of nations argument is that the Define and Punish Clause gives Congress the power to forbid any acts that a foreign nation has an international law obligation to prevent, such as the use of its territory to launch attacks against a neighbor.  [Editor's note:  in my view, this is a power that the clause grants.  Typically, with the exception of piracy, this is how eighteenth century commentators understood individual violations of the law of nations.]   But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them. For example, no serious commentator contends that Mexico’s failure to prevent migration by its citizens to the United States is a breach of its international law obligations, even if the migrants violate US immigration law.