Does the Constitution Give Congress the Power to Regulate Immigration?

Thanks to Ampersand over at Alas, a Blog, I ran across two articles by Ilya Somin arguing that the Constitution includes no enumerated power to restrict immigration.  Go check Amptoons out – he’s a killer cartoonist.

In the first, at Reason Magazine, Somin suggests that President Obama had the power to defer deportation for four million immigrants through executive order.  He thinks this is so in part because he doesn’t think the Constitution gives Congress no power to regulate immigration in the first place.  Later, in the Washington Post, Somin argues that the Migration and Importation Clause (Article I, Section 9) doesn’t fix this because it refers to slavery.

It’s true that the US Constitution enumerates no specific power to restrict immigration.  And Article I Section 9 was indeed intended to protect slavery from Congressional regulation by restricting its power to stop importation of slaves before 1808.  Further, thinking about this in historical and social context it makes sense – Revolution-era Americans simply thought about immigration in a different way. They had a continent to fill and happily invited pretty much anyone to fill it until racial animus against the Chinese prompted the 1882 Chinese Exclusion Act.  It’s not clear they could have kept anyone out before then anyway. So it’s not terribly surprising that they didn’t think to specify that Congress should control immigration rather than the States – or that they may have thought the States should in fact have this power.

Of course, it’s not likely any court will ever strike down US immigration law on Somin’s grounds.  What’s interesting here is the Conservative response, which amounts to “Congress has that power because we think it should.”  Check the WaPo comments section for arguments that this power flows from the “Law of Nations” clause, for example. You’ll also see that racial animus still drives conservative calls for strict immigration rules, by the way.

Anyway, this looks an awful lot like arguments conservatives typically reject, as when liberals argue that the “Necessary and Proper” clause gives Congress powers beyond those specifically enumerated. If the power to “Define and punish…Offences against the Law of Nations” or some nebulous “foreign policy” role allows Congress to regulate immigration, then the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” gives Congress the power to, for example, require people to have health insurance.

Of course I doubt we’ll ever see a court strike down US immigration law on the grounds Somin lays out. But the discussion shows that even Conservatives have no problem with implied Congressional authority, and by extension implied rights, as long as they approve of the specifics.

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