I have some responses to some of the many interesting points in the posts by Professor Somin and Dean Eastman.[1]
First, I do not dispute Professor Somin’s important point that under the pre-Reconstruction Constitution, the right to interstate travel even of U.S. citizens was not clearly established. And I accept the implication that any reasonable interpretation of the Commerce Clause requires that citizens be able to move freely among the states, free of state or federal restriction. That could mean that commerce never includes migration, alike with respect to interstate migration, international migration, and the migration of members of Indian nations.
But I am willing to live with the possibility that the issue was unsettled, unclear, or misunderstood before the Reconstruction Amendments. And I could also accept the idea that the powers of Congress differ when it is regulating commerce between the states, with foreign countries, or with the Indian tribes, even though the powers derive from a single phrase.[2] Maybe commerce (1) does not include migration of citizens for purposes of the interstate commerce clause; (2) does include migration of noncitizens for purposes of foreign commerce; and (3) was once understood to cover migration under the Indian Commerce Clause, but does not now except to the extent that it is covered by the foreign commerce power.[3]
Second, Dean Eastman’s point about the practical importance of the Naturalization Clause is surely correct in that access to naturalization certainly affected immigration. When the Naturalization Act of 1790 restricted naturalization to “free white persons,” that undoubtedly expressed a view of the Founders that the United States was a white nation, and made it more difficult for members of other races to thrive here because they could not buy land in many states.
Dean Eastman goes further and contends that the naturalization power grants authority to regulate immigration. But the power to make things more difficult is not the same as the power to refuse entry or expel. For example, the states were and are free to grant or deny state citizenship to whomever they wanted,[4] except as provided in the Fourteenth Amendment, and could deny noncitizens the right to own land based on race,[5] other than as provided by treaty or federal law. But those broad and practically important powers simply did not give states the right to regulate immigration directly.
Third, my eyebrow is raised at the claim that immigration is an inherent sovereign power, particularly in light of the claim that two textual powers also cover the area. I had thought that “ours is a limited government of specifically enumerated powers.”[6] Also, it is odd that the Framers would imply sovereign powers in a constitutional cloud when so many of them are set out specifically in Article I; if they are implied or inherent, why bother to list any of them; if you’re going to bother to list any of them, why not list at least all of the important ones? Perhaps the Framers were just sloppy, but I think they meant what they wrote, and wrote what they meant, including in the Ninth Amendment. In addition, if the Congress or the Supreme Court is entitled to identify and act upon sovereign powers nowhere identified in the Constitution, one wonders what the limiting principle might be about the catalog of those powers.
A final but very important thought about Dean Eastman’s argument. I believe Professor Somin and I share the view that race and close proxies for race are impermissible considerations in immigration policy. However, it is not clear to me that Dean Eastman’s understanding of the law leads to a non-racial immigration policy. The argument states:
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.
Again, there is no question that the United States was thought of as a white nation by the drafters of the Constitution; just as they decided to tolerate slavery, they decided that only white immigrants could become part of “the People” though naturalization. It is also clear that these principles were not repudiated as part of Reconstruction; the Fourteenth Amendment was enacted by a Congress that decided after debate to maintain racial restrictions against Asians in federal naturalization law.[7] Again consistently with this policy, in the era before Bolling v. Sharpe, Congress discriminated in immigration on the basis of race, and the Supreme Court upheld this discrimination in cases like Chae Chan Ping v. United States.[8]
The argument claims that “Congress can make distinctions,” present tense, not that it could or did. I wonder if Dean Eastman believes that Congress today has the power to conclude that immigrants from Scandinavian countries would be more suitable to assimilation into our nation than those from Asia, Africa, or Latin America. I for one hope that the Court would strike down a law embodying such a policy. A successful immigration program can be based on testing for qualifications of language, education, accomplishment, and other aspects of the individual applicant for admission; that was the genius of the Immigration and Nationality Act Amendments of 1965. It turns out that people from every part of the world can make great Americans. To go back to the bad old days would be a catastrophe in more ways than one.
Notes
[1] First, it should be noted that Professor Jennifer Gordon has just- or soon-to-be- published paper which will be of interest to readers. Jennifer Gordon, Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution, 93 Ind. L.J. 653 (2018) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3110883
[2] Thus, in an immigration case, the Court held that having interpreted the meaning of a provision with respect to admitted noncitizens, the same meaning necessarily applied to unadmitted noncitizens; “[t]o give these same words a different meaning for each category would be to invent a statute rather than interpret one.” Clark v. Martinez, 543 U.S. 371, 378 (2005). But, rightly or not, this has not been the universal practice with respect to the Constitution—for example, while the Sixth Amendment applies to “all criminal prosecutions” the Court has held that different circumstances trigger, say, the right to a jury trial (the possibility of more than six months’ incarceration) or the right to counsel (felony charge or a misdemeanor with the possibility of incarceration).
[3] That is, I assume few would contend that members of Indian nations who are U.S. citizens living in the United States could today be subject to expulsion orders or interstate residence or travel restrictions based on the Indian Commerce Clause. Note, however, that there are special, race-based immigration privileges for certain Canadian Indians. Paul Spruhan, The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law, 85 N. Dak. L. Rev. 301 (2009) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1267977
[4] For discussions of the modern power, see Peter L. Markowitz, Undocumented No More: The Power of State Citizenship, 67 Stan. L. Rev. 869, 870 (2015); Peter J. Spiro, Formalizing Local Citizenship, 37 Fordham Urb. L.J. 559 (2010); Rose Cuison Villazor, “Sanctuary Cities” and Local Citizenship, 37 Fordham Urb. L.J. 573 (2010).
[5] See, e.g., Keith Aoki, No Right to Own?: The Early Twentieth-Century “Alien Land Laws” As A Prelude to Internment, 19 B.C. Third World L.J. 37 (1998).
[6] John C. Eastman, A Fistful of Denial: The Supreme Court Takes A Pass on Commerce Clause Challenges to Environmental Laws, 2004 Cato Sup. Ct. Rev. 469, 472.
[7] Earl M. Maltz, The Federal Government and the Problem of Chinese Rights in the Era of the Fourteenth Amendment, 17 Harv. J.L. & Pub. Pol’y 223 (1994) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1471513
[8] Gabriel J. Chin, Chae Chan Ping and Fong Yue Ting: The Origins of Plenary Power, in Immigration Law Stories (David Martin and Peter Schuck, eds., 2005) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=722681