Where in our constitutional system is the power to regulate immigration assigned? Professor Ilya Somin argues that the power to regulate immigration is not a power given to Congress because it is not enumerated. The Court has recognized three sources for such a power, two textual and one inherent. And I think it is correct on all scores.
First, there is the power over naturalization contained in Article I, Section 8. Granted, the power to “naturalize”—that is, to confer citizenship—is not the same thing as the power to regulate immigration. But the notion that the power to regulate immigration is not subsumed within the power of naturalization is an anachronistic view of the latter power that understands naturalization merely to confer citizenship and not as having anything to do with who can immigrate into this country in order to obtain citizenship. As James Pfander and Theresa Wardon correctly noted in a 2010 article published in the Virginia Law Review, the Framers “regarded the formation of naturalization rules as tantamount to the construction of an immigration policy for the new nation.” Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 Va. L. Rev. 359, 393 (2010).
The passage of time may have obscured the circumstances that made this obvious in 1787. When that clause was written, immigration and naturalization were largely synonymous because of a couple of facts that are no longer true. First, one did not cross the Atlantic in a number of hours; it was a three-month-long journey. Most people made the trip only once in a lifetime (though if you were a diplomat, you might have to make it several times). However, making that trip meant that you were relocating and taking on a new allegiance and becoming a member of a new body politic.
The second thing was property law. If you were not a naturalized citizen, you could not inherit property—and in many cases you could not even own property. And so, before you made the decision to immigrate, you had to know what the naturalization rules were. Giving Congress the power to naturalize—to determine who can become citizens and members of our body politic—necessarily encompassed the power to decide who could come here in order to put themselves up for that naturalization.
The second textual source for Congressional authority over immigration is the power given to Congress to regulate foreign commerce. In the Passenger Cases, decided in 1849, the Court (or rather, the Justices in their multiple opinions) held that states could not impose a head tax on passengers coming into their ports because that would intrude on Congress’s power to regulate foreign commerce, a power that included regulation of immigration of persons. The Court stated that engaging in the business of bringing passengers is an aspect of foreign commerce, and the notion that passenger travel is “commerce” was decided in Gibbons v. Ogden, so both cases would have to be overruled to sustain Somin’s argument that Congress has no power to regulate the transportation of people into the United States.
But what about immigration that does not involve “commerce”—which is to say, as Somin does, those who walk across the border rather than those who pay to be transported here? There is nobody engaged in the commerce of transporting those people other than the people themselves.
Now I’m about as stingy on the reading of what constitutes “commerce” as anyone, but even I accept the proposition that the power to regulate foreign commerce includes not just trade in goods but also intercourse with foreign nations more broadly—and that would necessarily include the movement of peoples. As Jack Balkin noted in a 2010 article in the Michigan Law Review, “Understanding ‘commerce’ in its original sense of ‘intercourse’ is consistent with all of the evidence offered by rival theories of commerce as trade or economic activity; but it better explains the source of Congress’s powers over immigration and foreign affairs.” People coming here to take up residence and engage in the economy would clearly have been viewed as part of the “intercourse” with foreign nations, fully within the power of Congress to “regulate Commerce with foreign Nations….”
Proof that this was the understanding of the naturalization and foreign commerce powers (or at least those powers as bolstered by the Necessary and Proper Clause) is found in the negative implication of the text of Article I, Section 9 of the United States Constitution, which specifically states: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year ….” What is the negative implication to be drawn from that restriction on Congress’s power? The negative implication is that Congress does have the power to restrict migration and importation, although it cannot exercise that power until 1808. This provision was aimed at slavery, as Somin quite correctly points out, but it says migration and importation, not just importation, and that additional word meant that the prohibition (and hence the implied power) applied more broadly than just to slavery. Somin’s recognition that the Convention deployed euphemisms to avoid explicitly mentioning slavery is misplaced, as the euphemism is in the phrase “such Persons,” not in the word “Migration.” As James Iredell, later a Justice on the Supreme Court, noted during the North Carolina ratifying convention, “[t]he word migration refers to free persons, but the word importation refers to slaves, because free persons cannot be said to be imported.” This point was also made expressly during the federal convention itself. As recorded in Madison’s notes of the convention, Gouverneur Morris indicated during debate on August 25, 1787 his view that the clause implied that the Legislature may tax freemen imported. Far from disabusing him of that notion, George Mason stated that “the provision as it stands was necessary for the case of Convicts in order to prevent the introduction of them.” The clause was then approved. In other words, the convention itself recognized that the Migration and Importation Clause was not limited to slavery.
More importantly for present purposes, the convention also recognized that the Clause implied that Congress did have power to restrict immigration.
In his oral argument before the Supreme Court in The Passenger Cases, Daniel Webster made the same point:
[The Clause] is a limitation upon the powers of Congress. Now, a limitation of a power admits the existence of the power limited. Congress, then, had by the Constitution, by the admission contained in this clause of it, power to prohibit the migration or importation of any persons other than citizens of the United States into the country …. If Congress had such power, whence did they derive it? What part of the Constitution gave it to them? They had power to collect and lay duties upon imports. They had power to regulate commerce with foreign nations, and they had all the powers necessarily belonging to a general national government, as it regards foreigners.
That last piece of Webster’s argument describes the third source of the federal government’s authority over immigration, namely that such a power is inherent in the very nature of sovereignty. The Supreme Court would later elaborate on this point when, in the Chinese Exclusion Cases, it recognized that Congress has inherent power over immigration, a power that is essential to and an incident of sovereignty. But the idea that the power over immigration was inherent in sovereignty did not originate with the Chinese Exclusion Cases. It was also present in the Passenger Cases forty years earlier. The Court held that the power to grant ingress and egress to and from its territory belongs to every sovereign, and cited Vattel, among others, for that proposition.
The states are also sovereigns, of course, but not with respect to foreign affairs. As James Madison explained in Federalist No. 32, for example, the Constitution left to the states issues that are of local concern but assigned to the national government all of the powers that are inherent in the definition or understanding of a national sovereignty. It would have been bizarre not to have recognized the power to regulate immigration as a power of the national government because control of one’s borders was such a critical and core aspect of sovereignty.
What does it mean to have sovereignty? The Declaration of Independence gives us some guidance on that question. It begins: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another.” After that opening statement, the drafters set out the propositions that legitimized their claim of right to renounce their former allegiance.
The Declaration’s “one people” language recognizes that even though all of humanity has fundamental, inalienable human rights, in order to secure those rights, peoples form discrete societies. These groups are most often defined geographically, and they each decide how to best institute a government to protect their inalienable rights. That process requires recognition of a group of people that stands distinct from other groups. All such groups have the same natural right to create their own government and to defend their own inalienable rights as we have. But a right to preserve geographic borders is inherent in the understanding of how “peoples” protect their rights. Boundaries serve to protect and secure the blessings of liberty and posterity for a nation’s people.
If we are going to accept that proposition at all, then we have to recognize that we must make a policy determination on how large our welcome mat should be for immigration. The only way to avoid that determination is to claim that there ought to be no distinction between citizen and noncitizen, no ability to control the volume of people that come at any given time, no borders, and hence no sovereignty. The Founders clearly did not have such an open-borders mentality.
To be sure, virtually no cases dealt with immigration restrictions for the first century of America’s history, because the country needed to populate its vast territory. In fact, the policy judgment at the time of the founding and for many years thereafter was to encourage immigration by as many individuals as possible in order “to people the Western lands.” Immigration was necessary for the successful expansion of American society but also for defense purposes. If the new nation had not shored up its western lands and other borders, the country would not have survived its early years. It is thus not surprising that there are not see cases dealing with restrictions on immigration in the early years of the new republic. The lack of case law, however, does not suggest that the Founders and early lawmakers did not recognize that Congress had a power to control immigration when, in its judgment, circumstances required a different policy.
In fact, the Founders recognized that when considering restrictions on immigration, it is important to focus on what is necessary to protect the people here. That even means that Congress can make distinctions between different parts of the world from which immigration is allowed, if it deems it good policy. Quite simply, immigrants from parts of the world where despotism was the rule were viewed as more problematic because such individuals, habituated to un-republican forms of government, would tend to bring their despotic tendencies and habits to the United States. These were the kinds of concerns that were expressed, for example, briefly at the Federal Convention and in the early Naturalization Acts in Congress.
That is why, when it confronted these issues a century after America’s founding, the Supreme Court concluded that immigration restrictions are inherent in sovereignty. Moreover, the Court recognized that this kind of policy judgment is best crafted by the political branches, not by judicial interposition. The Court thus recognized that Congress has, under the Constitution, almost unfettered plenary authority to make such judgments. The kinds of arguments that Somin makes, therefore, are more properly submitted to Congress, not to the courts. If you think lawmakers got the policy judgment wrong, then argue for a change in the law, because what the proper immigration policy should be is inherently a political decision that the legislative branch is entitled to make.
I, for one, do not think Congress has the mix right at the moment, and certainly believe that much of the existing impediments and red tape to get through the process are unnecessary. But it is Congress that has to make the decision on where to draw the line regarding how much immigration can be absorbed at any given time without detrimental consequences for the existing citizenry. Otherwise we will destroy not only the notion of boundaries but also the notion of sovereignty itself, and that seems counter to the very principles of the Declaration of Independence that we ought not to break.
A prior version of this article was previously at John C. Eastman, “The Power to Control Immigration Is A Core Aspect Of Sovereignty,”Harvard Journal of Law & Public Policy Volume 40, Number 1 (2016): Pp. 9-15. Reprinted with permission.