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11/29/2015

Ilya Somin on States Refusing Syrian Refugees
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Can States Bar Syrian Refugees?  On the original meaning:

State governments might be able to deny refugees some resettlement assistance currently provided by state agencies. But they can’t bar Syrian refugees from settling within their jurisdiction.

The above is true under current and longstanding Supreme Court precedent. Things might be very different under the original meaning of the Constitution, which, in my view, does not give Congress any general authority over immigration. Under this approach, states had broad power over immigration, and many states did in fact exclude some categories of migrants in the early to mid nineteenth century. I would be happy to see the Supreme Court go back to the original meaning in this field (though the odds of that happening in the near future are extremely low).

But restoration of the original meaning is unlikely to appeal to modern immigration restrictionists because it would require them to concede that the federal government lacks the power to bar migrants. Immigrants could then still enter the US so long as at least one state was willing to take them.

Maybe.  I agree that it might well be true that Congress lacks a general power over immigration under the Constitution's original meaning.  But I would think Congress could regulate the transportation of immigrants in foreign commerce.  Other congressional powers might allow some further regulation of immigration, and added together they might amount to something close to a general power.

Another possibility is that border security is an executive power of the President (derived from the English monarch's power to admit foreigners into England), and that Congress has a derivative necessary-and-proper power to pass laws in support of that power.