{"id":332,"date":"2018-08-13T17:48:39","date_gmt":"2018-08-13T21:48:39","guid":{"rendered":"http:\/\/foggybottomline.com\/?p=332"},"modified":"2018-08-13T18:01:34","modified_gmt":"2018-08-13T22:01:34","slug":"does-the-constitution-give-congress-the-power-to-regulate-immigration","status":"publish","type":"post","link":"https:\/\/foggybottomline.com\/?p=332","title":{"rendered":"Does the Constitution Give Congress the Power to Regulate Immigration?"},"content":{"rendered":"

Thanks to Ampersand\u00a0<\/a>over at Alas, a Blog<\/a><\/em>, I ran across two articles\u00a0<\/a>by Ilya Somin\u00a0<\/a>arguing that the Constitution includes no enumerated power to restrict immigration.\u00a0 Go check Amptoons\u00a0<\/em>out \u2013 he\u2019s a killer cartoonist.<\/p>\n

In the first, at Reason Magazine<\/a><\/em>, Somin suggests that President Obama had the power to defer deportation for four million immigrants through executive order<\/a>.\u00a0 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.\u00a0 Later, in the Washington Post<\/a><\/em>, Somin argues that the Migration and Importation Clause (Article I, Section 9) doesn\u2019t fix this because it refers to slavery<\/a>.<\/p>\n

It\u2019s true that the US Constitution<\/em><\/a> enumerates no specific power to restrict immigration.\u00a0 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.\u00a0 Further, thinking about this in historical and social context it makes sense \u2013 Revolution-era Americans simply thought about immigration in a different way.\u00a0They 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<\/a>.\u00a0 It\u2019s not clear they could have kept anyone out before then anyway.\u00a0So it\u2019s not terribly surprising that they didn\u2019t think to specify that Congress should control immigration rather than the States \u2013 or that they may have thought the States should in fact have this power.<\/p>\n

Of course, it\u2019s not likely any court will ever strike down US immigration law on Somin\u2019s grounds.\u00a0 What\u2019s interesting here is the Conservative response, which amounts to \u201cCongress has that power because we think it should.\u201d \u00a0Check the WaPo comments section for arguments that this power flows from the \u201cLaw of Nations\u201d clause, for example. You’ll also see that racial animus still drives conservative calls for strict immigration rules, by the way.<\/p>\n

Anyway, this looks an awful lot like arguments conservatives typically reject, as when liberals argue that the \u201cNecessary and Proper<\/a>\u201d clause gives Congress powers beyond those specifically enumerated.\u00a0If the power to \u201cDefine and punish\u2026Offences against the Law of Nations\u201d or some nebulous \u201cforeign policy\u201d role allows Congress to regulate immigration, then the power to \u201cmake all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers\u201d gives Congress the power to, for example, require people to have health insurance.<\/p>\n

Of course I doubt we\u2019ll ever see a court strike down US immigration law on the grounds Somin lays out.\u00a0But 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

Thanks to Ampersand\u00a0over at Alas, a Blog, I ran across two articles\u00a0by Ilya Somin\u00a0arguing that the Constitution includes no enumerated power to restrict immigration.\u00a0 Go check Amptoons\u00a0out \u2013 he\u2019s 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 […]<\/p>\n","protected":false},"author":27,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[76,77,103],"tags":[121,105],"class_list":["post-332","post","type-post","status-publish","format-standard","hentry","category-immigration","category-racism-and-bigotry","category-us-constitution","tag-immigration","tag-us-constitution"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/foggybottomline.com\/index.php?rest_route=\/wp\/v2\/posts\/332","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/foggybottomline.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/foggybottomline.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/foggybottomline.com\/index.php?rest_route=\/wp\/v2\/users\/27"}],"replies":[{"embeddable":true,"href":"https:\/\/foggybottomline.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=332"}],"version-history":[{"count":3,"href":"https:\/\/foggybottomline.com\/index.php?rest_route=\/wp\/v2\/posts\/332\/revisions"}],"predecessor-version":[{"id":335,"href":"https:\/\/foggybottomline.com\/index.php?rest_route=\/wp\/v2\/posts\/332\/revisions\/335"}],"wp:attachment":[{"href":"https:\/\/foggybottomline.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=332"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/foggybottomline.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=332"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/foggybottomline.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=332"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}