At Samefacts, Mark Kleiman (NYU Public Policy): Does the Constitution authorize immigration restriction? From the introduction:
If, as the originalists keep reminding us, the Constitution gives the federal government only strictly limited, “enumerated” powers, what provision could be interpreted to authorize immigration restrictions, let alone the creation of a massive national police force entitled to stop people at random within 100 miles of any coast or land border and make them prove their right to be in the country?
As you can see from Art. I, Sec. 8 above, restricting immigration is clearly not one of the “enumerated powers” of the Congress, unlike – for example – passing anti-piracy laws and granting letters of marque. More to the point, naturalization laws are among the enumerated powers, making the omission of immigration restriction stand out as a “loud silence.”
A few other provisions seemed promising, but didn’t really pan out. For example, Article 9 forbids the Congress from interfering with “migration or importation” before 1808, but that was clearly about the slave trade, and works with the anti-amendment provisions of Article V to prevent its abolition before that year. It would be a big stretch to infer from it a general, unenumerated power of Congress over immigration.
So: a puzzle.
And from the conclusion:
The problem for originalists here is that, in the Eighteenth Century, immigration (by contrast with the slave trade) was regarded as a boon rather than a problem. The Framers didn’t give the Congress or the President the power to restrict it simply because it didn’t occur to them that restricting it might be regarded as desirable, just as they allowed the creation of a navy, in addition to an army, but not an air force, because they couldn’t imagine aerial combat. A reasonable person might say that that was then and this is now, and that the federal government’s enumerated powers ought to be stretched to cover the contemporary situation. But that’s exactly the view originalists hate when it comes to same-sex marriage.
[Most people seem] to be working backwards: starting with the proposition that surely there must be some power to limit immigration, and searching for something in the text that could be used to allow for that, precisely as they mock liberal justices for having done to discover a general right to reproductive freedom – overruling the police power of the states – that would have surprised the hell out of the authors of the Fifth and Fourteenth Amendments.
What’s absolutely certain is that not a single elected official who preaches originalism and “limited government” and “not legislating from the bench,” and who also supports restrictive immigration policies as a matter of economic policy (or applied racism), will be bothered for a millisecond by the fact that the Constitution as written needs to be bent all out of shape to make it confer that power on the federal government.
Plus a quote from me, but I don't really try to solve the problem. I think originalists have some responses, but the topic has not been developed as much as it might be.
UPDATE (by Andrew Hyman):
This brief opinion piece by Rob Natelson seems very compelling to me: The Constitution does indeed permit immigration caps as part of ‘the law of nations’.
Natelson emphasizes the Define and Punish Clause, which is not addressed at all by Mark Kleiman. Although immigrating into the U.S. was not necessarily an offense against the law of nations circa 1787, intruding into any country against its will was indeed an offense against the law of nations circa 1787, as Natelson shows.
