« Ilan Wurman: Importance and Interpretive Questions
Michael Ramsey
| Main | Programming Note: Blog Holiday
Michael Ramsey »


Geoffrey Heeren: Rethinking the Migration or Importation Clause
Michael Ramsey

Geoffrey Heeren (University of Idaho College of Law) has posted Immigration Law and Slavery: Rethinking the Migration or Importation Clause (Wisconsin Law Review, Vol. 2023, No. 4, 2023) (56 pages) on SSRN.  Here is the abstract:

The traditional account of the origins of federal immigration law mostly glosses over its deep connection to slavery. An examination of that connection calls the constitutional foundation for immigration law into question, alters the calculus for judicial review of federal immigration action, reframes our understanding of federalism, and lays bare the nation’s exploitative dependence on immigrant labor. This article makes this paradigm shift by focusing on a long-neglected textual source for federal immigration power: the Migration or Importation Clause of Article I, Section 9, Clause 1 of the Constitution. Scholars have almost uniformly discounted the Migration or Importation Clause as a source for federal immigration power because of its connection to slavery. In sharp contrast, this article contends that the Migration or Importation Clause makes sense as a source for the federal immigration power because of its connection to slavery, which was deeply intertwined in the early Republic with immigration.

The history of the Constitutional Convention reveals that the framers specifically discussed slavery and immigration together and were aware that their chosen wording for the Migration or Importation Clause would apply to free immigrants. An originalist understanding of the Clause therefore supports a federal immigration power under the Commerce Clause, which was the presumptive basis for regulating the slave trade after the 1808 date set out in the Migration or Importation Clause.

The legacy of the Migration or Importation Clause continues to be felt in immigration law. Slavery was an atrocity that inflicted intergenerational harm on blacks; in contrast, immigrants have often enjoyed opportunities and passed on wealth. Nonetheless, the current structure of immigration law perpetuates nineteenth century labor norms for the millions of undocumented workers who under threat of deportation do much of the nation’s most difficult work for lower pay and with fewer legal protections than documented workers. Reckoning with the ties between immigration law and slavery offers an opportunity to reflect on the failures of this system, and also reveals a redemptive path forward. In the face of an exploitative system, the strategies and logic of abolitionism offer hope for a better immigration future.

In my (tentative and evolving) view of the source of federal power over immigration, I agree that (1) the migration or importation clause strongly implies that Congress has power over voluntary migration as well as importation of slaves and (2) that the commerce clause is the likely source of much of this power, as the founding generation presumably thought that most migration would be by commercial ships.  Locating the immigration power solely in the commerce clause, though, may suggest that Congress has no power over voluntary independent migration across land borders.  That may just be a gap in the Constitution's allocation of federal power, as the drafters likely didn't envision much overland migration into the U.S. given the founding-era borders.  And in the absence of federal power, the power would go to the states.  But it's also worth considering Rob Natelson's suggestion that Congress' power over migration also arises from the power to define and punish offenses against the law of nations (his contention is that entering sovereign territory without permission of the sovereign was such an offense).