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10/15/2018

Josh Blackman: The Power to Exclude
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted The Power to Exclude on SSRN.  Here is the abstract:

Under modern doctrine, the federal government has an inherent authority to exclude aliens from entering the United States. In contrast, states lack any power to exclude aliens from entering their own borders. Though well settled, this dichotomy stands in tension with our Constitution’s structural design. It is a bedrock principle that the federal government only has those powers that are enumerated in the Constitution. In many respects, modern doctrine inverts our constitutional order. The states, which have the strongest claim to a general power to exclude cannot exercise that power. Congress, which has the weakest claim to an inherent power to exclude, can exercise that power with few discernible limits. 

Does the federal government have the power to exclude aliens? Yes, though the answer is not as straightforward as many of us have assumed. There are four plausible candidates in Article I to support an exclusionary power: the Naturalization, Commerce, Law of Nations, and Migration of Importation Clauses. However, none of these clauses, standing by itself, supports an enumerated power to prevent foreign aliens from entering the United States. Rather, the strongest argument in support of an exclusionary power is an implied authority. It is both “necessary” and “proper” for Congress to restrict entry to aliens in order to more effectively naturalize citizens and, perhaps, regulate commerce. This authority is incidental, and does not “flatten[] the principle of state sovereignty.” Therefore, the exclusionary power does not amount to a “great substantive and independent power” that improperly aggrandizes Congress’s reach over states, their officials, and individual Americans. This authority belongs solely to Congress, and is not an inherent executive power.

(Via Josh Blackman's Blog).

Professor Blackman presented this paper at this outstanding conference at Michigan State University over the weekend, and I was invited to comment on it.  I largely agreed with it and made three main points on its substance:

(1) I completely agree that the Supreme Court's idea of inherent power over immigration is inconsistent with the Constitution's original meaning and indeed completely contrary to the document's basic design.

(2) I agree that (a) the migration or importation clause strongly implies that Congress has substantial power over the entry of aliens, and (b) that the necessary and proper clause combined with the naturalization clause is likely the best source of this power.  (Aside: I am still thinking over the role of the law of nations clause, as suggested by Robert Natelson and Andrew Hyman; our panel did not focus much on that clause).  I'm doubtful, though, that the clauses on which Professor Blackman relies can give Congress complete power over entry of aliens -- for example, over aliens who wish to enter not for the purpose of obtaining residency or citizenship and not for commercial purposes.

(3) I think the case for executive power to refuse entry to aliens is stronger than he indicates, though I'm less persuaded of it than I once was.