Ilya Somin says the U.S. Constitution contains no general federal power to restrict immigration. He argues that many of the clauses that have been said to grant this power do no such thing. He concedes that the weight of precedent lies in the other direction, and that prospects for change are slim. Yet he hopes to call originalists’ attention to the lack of an enumerated power in this area.
Immigration law has produced grave abuses of power throughout American history. Few doubt that Congress has power in this area, but the textual foundation of the power is not entirely obvious. Finding it might help to curb the worst excesses of a power generally thought necessary. Chin suggests that the Commerce Clause is the most promising basis for a federal power over immigration.
John Eastman argues that the founders would have understood the Constitution’s naturalization clause to confer a federal power to regulate immigration; that likewise the rules regarding property ownership required it; that the commerce clause encompassed immigration as a form of commerce; and, finally, that regulating immigration is an inherent power of all states, and as such it requires no textual support at all.
Discussion through the end of the month.
Related at Cato
Legal Brief: Trump v. Hawaii, March 23, 2018
Capitol Hill Briefing: Legal Immigration Reforms for the 21st Century, March 19, 2018