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05/27/2017

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

At Josh Blackman's Blog, Rob Natelson (Independence Institute) has this response to Ilya Somin's critique of Professor Natelson's essay The Constitution does indeed permit immigration caps as part of ‘the law of nations’.  From the introduction:

Before addressing his argument, I should make clear I agree with Professor Somin on several key issues about the Constitution and immigration. I agree that the original meaning of the Commerce Clause does not include a general power to restrict immigration, and that the Naturalization Clause probably does not, either. In company with him, I reject the claim that the federal government possesses extra-constitutional inherent sovereign authority—because that claim is starkly inconsistent with the ratification-era debates, the structure of the Constitution, and the text of the Tenth Amendment.

Where we differ is about whether the power to “define and punish Offences against the Law of Nations” includes authority to restrict immigration.

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The law of nations held, as a general principle, that nations should not harm each other. Hence, it provided that nations must refrain from unauthorized incursions into other nations’ territory. To violate international law, the unauthorized entry need not be led by a foreign government. As the Founders’ favorite international law scholar, Emer de Vattel observed, “Private persons, who are members of one nation . . . may injure a foreign sovereign.” Immigration statutes implemented the “no unauthorized entry” norm against “private persons” from other countries.

Here's an originalist conundrum:  Suppose Professor Natelson is right that at the time of the framing the define and punish clause would have permitted Congress to comprehensively regulate immigration because unlawful immigration was a violation of the law of nations.  And further suppose (although he does not argue this) that the framers specifically designed the Constitution this way to give Congress a comprehensive power over immigration, which they thought Congress should have.  But also suppose Professor Somin is right that unlawful immigration is no longer a violation of the law of nations (today's customary international law) because changes in the customary understanding of international law that no longer place any duty on foreign citizens or sovereigns to refrain from or prevent such immigration.

Does Congress still have the authority to regulate immigration under the define and punish power even though the act being punished is no longer a violation of international law?

(On further reflection, I continue to prefer my suggestion that the President has power to prevent entry of peaceful migrants as part of the executive power over foreign affairs, just as the President has power to prevent entry of hostile invaders as part of the power to repel attacks; and Congress has power to regulate in the area as part of its power to make regulations necessary and proper to carry into execution the powers vested by the Constitution in other branches.)