President Trump announced his second nomination to the Supreme Court on Monday. Perhaps as forward in the minds of conservatives as preserving the right to keep and bear arms, expressly protected from federal infringement by the Second Amendment, is how the new justice might rule on the Trump administration’s various immigration policies, decried by the left as “fascist!” and supported by the right as the federal government’s “constitutional duty.”

Yet federal regulation of immigration is a power both Thomas Jefferson and James Madison maintained was “no where delegated to the federal government.” And since no amendment has granted that power since they made that argument in 1798, it is exercised by the federal government without the consent of the governed, legitimized only by the same kind of “activist Court” conservatives condemn when it sanctions federal power they don’t like.

What the Constitution Actually Says

First, to the document itself. Conservatives make two arguments for the Constitution somehow delegating this power. One is completely spurious; the other more plausible but ultimately without merit. The first argument is that the power is granted with the words, “To establish an uniform Rule of Naturalization,” in Article I, Section 8. But “naturalization” concerns only who can become a citizen of the United States, not who can visit, work, or live as a permanent alien. When pressed, even most reasonable immigration hawks will concede this.

The second argument concerns the first paragraph of Section 9, which reads:

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

The reasoning here is that since the federal government is prohibited from banning migration (immigration) or importation (the slave trade) only until 1808, it must be granted the power to do so after 1808.

This is the same backward reading of the Constitution – that anything not prohibited to the federal government must be within its powers – that conservatives scream bloody murder about on almost any other issue. It is true that for individuals possessing an inalienable right to liberty, a law that prohibits, for example, certain activity on Wednesdays and Fridays does not restrict individuals from that activity on any other days of the week. That is a correct legal interpretation for laws pertaining to individuals.

However, the Constitution is not a set of laws pertaining to individuals, and the federal government does not have an inalienable right to liberty.

However, the Constitution is not a set of laws pertaining to individuals, and the federal government does not have an inalienable right to liberty. On the contrary, the Constitution is written with the assumption the federal government has no power not delegated to it. The Tenth Amendment was ratified to ensure that point wasn’t lost. Therefore, just because certain powers are prohibited to the federal government by one or another clause of the Constitution, one cannot assume that any power not prohibited is granted. Only powers explicitly delegated are within the federal government’s purview. Strict constructionists go so far as to point out the words “expressly delegated” were used in many of the ratifying conventions, “expressly” left out by Madison in drafting the Tenth Amendment because he thought it unnecessary.

The Supreme Court's Opinion

Both Jefferson and Madison were obviously aware of the 1808 clause in Article 9 and still maintained the federal government wasn’t delegated power to regulate immigration. Jefferson cited the clause directly, stating it was “inserted in the Constitution from abundant caution,” not as a grant of power after 1808. Jefferson made his position clear, writing that “alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens.”

Let’s not forget Madison was the man who wrote the 1808 clause. He still maintained the power wasn’t there. He didn’t write, “until after 1808.” He wrote, “no where delegated.”

After the expiration of the reviled Alien and Sedition Acts, the federal government made no serious effort to regulate immigration until after the Civil War, when a landmark immigration case came before the Supreme Court. In Chy Lung v. Freeman, the Court ruled unconstitutional a California state law allowing the state immigration commissioner to deny entry to passengers suspected of being “lewd and debauched.” What made the ruling so important was the Court’s assertion that the powers the state immigration officer was exercising “can only belong to the federal government.”

In typical SCOTUS fashion, it sprinkled some ambiguity into the decision by maintaining that states reserved some regulatory power over immigration when “absolutely necessary.” Nevertheless, it is this case future courts and legislators would point to in maintaining that the federal government has the sole power to regulate immigration into the United States.

One can read the text of the decision for oneself; it does not require a law degree to understand. The Court makes a very strong argument that the practice of states regulating immigration from foreign nations poses a danger of getting the whole republic into a war. After all, if California mistreated Chinese citizens to the point where the Chinese government took exception, it was not Sacramento, but Washington, D.C., that would have to answer. And it would be all 38 states (at the time) that would have to bleed and pay for a war should one break out.

The Court points to no language in the Constitution delegating power to the federal government. Per the Tenth Amendment, that means the power didn’t exist at the time of the ruling, and no subsequent amendment has granted it.

That’s a compelling argument for why the federal government should be delegated the power to regulate immigration (and there are other arguments, for and against), but it has nothing to do with whether the states had already delegated that power to the federal government at the time. The court goes on to argue that it is illogical for the Constitution to grant power to the federal government to conduct diplomacy with other nations, declare war, and regulate commerce but leave regulation of immigration to the states. However, the Court’s job isn’t to decide what’s logical; it’s to decide what’s constitutional, i.e., within the delegated powers. The Court points to no language in the Constitution delegating power to the federal government. Per the Tenth Amendment, that means the power didn’t exist at the time of the ruling, and no subsequent amendment has granted it.

The Federal Government's Current Immigration Policy Is Unconstitutional

This isn’t to say the federal government shouldn’t regulate immigration. Given our present circumstances, maybe it should. But it is presently doing so without the consent of the governed, which can only be granted by delegation in the original Constitution or a subsequent amendment. An amendment to the Constitution should be offered to grant the federal government the power.

Why offer an amendment now, after the federal government has been exercising the power for over a hundred years? For the same reason amendments should be offered for any power so usurped: to obtain the consent of the governed—if it is obtainable. Most likely, it is. While progressives and some libertarians currently insist upon “open borders,” they would be likely to compromise for less if they had a say in the process.

It’s not as if the first draft of a potential amendment would be the last word. To get an amendment ratified by three-fourths of the states, it is likely many versions would be debated, with clauses inserted and removed, before language that would pass blue states and red states could be offered with the realistic expectation of ratification.

Is it possible no amendment delegating this power, no matter how qualified or limited, would be ratified? Yes, it’s possible. That would simply settle the issue of whether the federal government has the consent of the governed to exercise it or not. Unless we’re willing to chuck this basic premise of the American system out the window, we’d have to live with the results. But it’s much more likely an amendment would emerge that would satisfy, if not overjoy, large majorities in both blue and red states.

More than just political disagreement, it is the product of allowing the federal government to exercise vast powers that no one ever consented to grant it.

The idea of a second American Civil War used to be unthinkable. Perhaps it still is, but violent civil unrest over political issues is already a reality. That trend shows no sign of reversing. More than just political disagreement, it is the product of allowing the federal government to exercise vast powers that no one ever consented to grant it.

Federal involvement in immigration, health care, education, retirement pensions, food safety, employment contracts, and myriad other powers currently exercised by the federal government have no bases in the plain words of the Constitution. Every one of these powers should be subjected to the amendment process. It may be the only way to preserve peace in a union on the verge of exploding into violence.