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03/31/2013

An Alternative Theory of National Immigration Power
Michael Ramsey

A prior series of posts (here, here and here) may leave the impression that I reject (as an original matter) a comprehensive national power over immigration.

It is true that I am skeptical of the common accounts given of comprehensive national immigration power, and also that in the absence of a comprehensive national immigration power I assume immigration would be (in some instances) a power of the states, which does not seem entirely implausible.  However, for what it's worth, my tentative conclusion is that there is a comprehensive national immigration power arising from a different source than the ones usually identified.

As sketched in The Constitution's Text in Foreign Affairs (Ch. 10, p. 208), I suggest that it comes from the President's executive power.  As I put it there, "The traditional eighteenth-century executive -- notably the English monarch -- had the power to decide when to admit aliens to the realm as part of the executive power of foreign affairs."  (Citation to Blackstone, vol. I, pp. 251-52). And as I argue at length elsewhere in the book, and in my prior work with Saikrishna Prakash (here and here), the best understanding of the President's Article II, Section 1 "executive Power" is that it includes the traditional powers of the executive to the extent they are not allocated elsewhere by the Constitution's text. 

As a result, in the first instance the President has the power to say which aliens are to be excluded.  However, the President needs legislative support to effectuate this power.  Congress' necessary and proper powers extend to legislation necessary and proper to support the powers of other branches.  Thus Congress, in support of the President, has a comprehensive legislative power over immigration.

I concede that this idea remains tentative, and that I'm not aware of founding-era commentary directly in support.