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03/21/2013

Andrew Hyman on Congress' Immigration Power
Michael Ramsey

Regarding this post, Andrew Hyman comments:

Professor Somin wrote: "The power to 'define and punish' offenses against 'the law of nations' presumably allows Congress to restrict the movement of pirates and other violators of international law.  But there is no general enumerated power to ban the entry of people simply because they are foreign nationals." This seems clearly incorrect to me.

If we look to the leading eighteenth-century treatises about the law of nations, we might expect to see advocacy of free migration and open borders, given that the human population was so much lower in those days.  But such a presumption about the eighteenth-century law of nations would be mistaken.

Emmerich de Vattel wrote: "[A] nation, whose lands are scarcely sufficient to supply the wants of the citizens, is not obliged to receive into its territories a company of fugitives or exiles."

William Blackstone paraphrased another leading authority on the law of nations: "Puffendorf very justly resolves, that it is left in the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted who are driven on the coast by necessity, or by any cause that demands pity or compassion."

Since Congress has power to define offenses against the law of nations, and since transnational migration clearly falls into that category, it's very safe to say that federal immigration restrictions are generally lawful. 

That's an interesting suggesting which I do not think has been fully addressed in academic commentary.