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05/17/2017

Rob Natelson on Congress' Immigration Power
Michael Ramsey

In The Hill, Rob Natelson (Independence Institute): The Constitution does indeed permit immigration caps as part of ‘the law of nations’.  From the introduction:

Some pro-immigration activists question whether the federal government has any constitutional power over immigration. “Where,” they ask, “is the word ‘immigration’ among the powers the Constitution grants to Congress?”

This question has embarrassed many who favor restrictions. They have cast around for answers, but by and large, their answers have been unpersuasive. For example, they have argued the Constitution granted implied power to restrict immigration because such power is core to sovereignty. They also claim immigration is within Congress’s authority to govern naturalization and regulate commerce.

...

As I point out in my book, The Original Constitution, both sides are missing something. They are missing the clause in the Constitution giving Congress “Power … To define and punish … Offenses against the Law of Nations.”

“The law of nations” was the usual 18th-century term for international law. It included standards of conduct among nations. But it also encompassed some rules within national boundaries. A power to “define and punish” an “offense against the law of nations” included protecting foreign ambassadors against interference, protecting safe-conduct passes — and restricting immigration.

Why have so many writers — including some constitutional law professors — missed this? One reason is that 18th-century legal terms and categories were different from those we use today. For example, a modern law book might feature a heading for “immigration law.” But in William Blackstone’s "Commentaries," the English book that served as America’s most popular legal treatise, there was no such heading. 

Instead, Blackstone addressed the topic in his chapter on the British king’s prerogative powers. When discussing safe-conduct passes, Blackstone observed that without them “by the law of nations no member of one society has a right to intrude into another ... [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient.” ....