September 2018

Does the Constitution grant the federal government a power over immigration? If so, how, and what are its limits?

Libertarians view the U.S. Constitution as a document that establishes few and strictly enumerated federal powers. If it’s not found in the document in so many words, libertarians are apt to declare that it’s not a power of the federal government at all.

Where, though, is the enumerated power to regulate immigration? This month’s lead essayist, Ilya Somin, argues that there is no such enumerated power, and that immigration probably ought to be unrestricted apart from matters of wartime necessity.

This is a controversial opinion, of course, and we’ve brought in two other legal scholars of significantly divergent views, John Eastman of Chapman University and Gabriel “Jack” Chin of the University of California at Davis. Each will write a response, and discussion will continue through the end of the month. Comments from readers will be open for a similar time.

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Lead Essay

  • 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.

Response Essays

  • 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.

Coming Up

Discussion through the end of the month.

Related at Cato

Issue Area: International Economics, Development, and Immigration

Legal Brief: Trump v. Hawaii, March 23, 2018

Capitol Hill Briefing: Legal Immigration Reforms for the 21st Century, March 19, 2018