Does the Constitution Give the Federal Government Power Over Immigration?

Immigration has become one of the most controversial legal and policy issues on the national agenda, especially since Donald Trump won the presidency on a highly restrictionist platform and began to implement his anti-immigration agenda, seeking to drastically reduce both legal and illegal migration.

Legal debates over immigration have also flourished, such as the recent litigation over Trump’s travel ban order, which the Supreme Court narrowly upheld against claims that it was the result of unconstitutional discrimination on the basis of religion. But few have even considered the possibility that the federal government lacks a general power to restrict immigration to begin with. If such power is absent, many federal immigration restrictions are unconstitutional regardless of whether they might violate individual rights.

And absent it is. If you peruse the list of federal powers in Articles I and II of the Constitution, a general power to restrict immigration is notable by its absence. It just simply is not there. That is not because the Framers only included a small number of very important powers and then left the rest to implication. To the contrary, Article I contains a long and detailed list of congressional powers, including comparatively minor ones, such as the authority to establish “post roads” and “fix the Standards of Weights and Measures.” If the Framers had wanted to give the federal government so massively important a power as the authority to ban immigration, one would think they would have clearly said so.

Legal theorists have developed a vast cottage industry of arguments claiming that the power over immigration can be implied from other authorities given the federal government, or that it is somehow present without being enumerated at all. But these efforts are ultimately unavailing.

The text and the original meaning of the Constitution undercut the notion that the federal government has general authority to restrict immigration, in the sense of having the power to forbid movement to the United States simply on the basis that a would-be immigrant was born abroad and is not a U.S. citizen. The doctrine that Congress has broad “plenary” power over immigration is long established and – today – rarely questioned. But it is actually an emperor walking around without clothes, or at least far more scantily clad than most assume.

Congress’ other powers do enable it to forbid some types of migration in some cases. For example, its authority to declare war, provide for the common defense, and define and punish offenses against international law, gives it the authority to forbid the movement of enemy soldiers, spies, terrorists, and pirates, among others. But it does not have any general power to forbid migration.

The idea that the federal government lacks general power over immigration seems radical today. But it was actually the dominant view during the Founding era and for many years thereafter. James Madison, the “Father of the Constitution,” and Thomas Jefferson were among its many exponents.

In the Virginia Resolution against the Alien and Sedition Acts of 1798, drafted on behalf of the Virginia state legislature, James Madison argued that the Alien Friends Act (which gave the president the power to deport aliens that he “shall judge dangerous to the peace and safety of the United States,” as well as any suspected of “treasonable or secret machinations against the government.”)[1] “exercises a power no where delegated to the federal government.”[2] Thomas Jefferson adopted much the same position in his October 1798 draft of the Kentucky Resolution, which stated 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 US. nor prohibited to the individual states distinct from their power over citizens.”[3]

That the Founding Fathers did not give the federal government the power to ban immigration is not surprising. Most of them were strongly committed to a policy of free immigration in order to increase the population and well-being of the new nation.

In this essay, I briefly critique standard arguments for the existence of general federal power over immigration, despite the lack of a specific textual grant of such authority. I focus on arguments based on text and original meaning, rather than “living constitution” theory. The latter must be left for another day. Many of those who today most strongly support broad federal power over immigration consider themselves to be constitutional originalists and argue for relatively narrow interpretations of federal authority in most other areas. In this essay, I suggest that the same approach they apply in other areas also undercuts general federal power over immigration.

I also consider only the scope of federal authority, and do not delve into the issue of state power over immigration. But if we were to limit federal power to its original scope, states would likely end up with greater authority in this area than they have under current Supreme Court precedent.

In the short run, the constitutional case against federal immigration restrictions is unlikely to lead either the Supreme Court or the other branches of government to cut back on longstanding precedent and begin constraining federal power in this field. But greater consideration of this constitutional question might lead to a reevaluation of the legitimacy of current immigration restrictions, and to the imposition of tighter constraints on federal power in this field, even if it is never pared back to its originally intended scope.

The Commerce Clause

From a modern standpoint, the most obvious basis for congressional authority over immigration is the Commerce Clause, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Modern Supreme Court precedent interprets the Clause to give Congress broad power to regulate virtually any “economic activity” and even most noneconomic activities that might in some way affect interstate or international commerce. Under this theory, Congress clearly has broad authority to forbid immigration. Even if immigration does not qualify as “economic activity,” it has a major effect on both international and interstate commerce.

But at the time of the Founding and for many decades thereafter, the dominant interpretation of the Commerce Clause was that it merely gave Congress the power to restrict interstate trade and other commercial transactions, not to forbid movement as such.[4] The Commerce Clause also gives Congress the power to regulate interstate as well as international commerce. The Constitution literally uses the same phrase to cover both, giving Congress the power to “regulate Commerce with foreign Nations, and among the several States.” Yet few if any eighteenth and nineteenth century jurists would have argued that Congress therefore had the power to forbid Americans from moving from one state to another.

The Naturalization Clause

The congressional power most closely related to immigration is the Naturalization Clause, which gives Congress the power to “establish an Uniform Rule of Naturalization.” As recently as 2012, the Supreme Court avowed that federal power over immigration “rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization.’”[5] Nonetheless, the power to determine eligibility for naturalization is obviously not the same thing as a power to forbid immigration.

In the eighteenth century, as today, many people resided in the United States without being citizens. Conversely, some American citizens resided abroad, and Congress could and did grant citizenship to persons who had never been in the United States at all, such as the foreign-born children of American citizens. The initial debate over the Naturalization Act of 1790 – the first congressional legislation on this issue – indicates that members of Congress clearly recognized that foreigners might reside in the United States for years before becoming eligible for citizenship.[6]

James Madison, then a member of the House of Representatives, wanted a naturalization law that “should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours.”[7] At the same time, he did not want a naturalization law so liberal that aliens might “might acquire the right of citizenship, and return to the country from which they came, and evade the laws intended to encourage the commerce and industry of the real citizens and inhabitants of America, enjoying at the same time all the advantages of citizens and aliens.”[8] Madison thereby recognized that citizens might potentially reside abroad, whereas noncitizens could migrate to the United States even without the right to naturalization. But neither he nor other participants in the debate suggested that the Naturalization Clause gives Congress the power to actually bar the entry of aliens.

The Necessary and Proper Clause

Some otherwise unenumerated federal powers are clearly granted to Congress by the Necessary and Proper Clause, which gives it the power to “make all Laws which shall be necessary and proper for carrying into Execution ” other constitutional powers of the federal government. In the famous 1819 case of McCulloch v. Maryland, the Supreme Court ruled that the term “necessary” must be interpreted broadly to cover any legislation that might be “useful” or “convenient” for implementing other powers.[9] This view – notably defended by Alexander Hamilton in the 1790s – was at odds with the more restrictive interpretations of “necessary” defended by James Madison and Thomas Jefferson, among others.

Under the expansive definition of “necessary” advocated by Hamilton and ultimately endorsed by the Supreme Court, a power to restrict immigration could easily be justified as a “useful” or “convenient” tool for implementing numerous other powers.

But while the Founders disagreed about the meaning of “necessary,” there was widespread agreement that the word “proper” represented an independent constraint on the powers granted by the Clause, and that it, at the very least, prevented Congress from assuming virtually unlimited power or from claiming a great and independent power not otherwise granted by the Constitution.[10] Even Alexander Hamilton, one of the strongest supporters of federal power among the framers, wrote in Federalist 33 that we must “judge of the necessity and propriety of the laws to be passed for executing the powers of the Union,”[11] thereby recognizing that “necessity” and “propriety” are two separate requirements.

Chief Justice Marshall’s Supreme Court opinion in McCulloch v. Maryland distinguished between powers “incidental” to the implementation of other federal powers, which the Clause gives to Congress, and “great substantive and independent power[s],” which it does not.[12] This approach to the interpretation of “proper” was recently adopted by Chief Justice John Roberts in his decisive opinion in NFIB v. Sebelius, the cases assessing the constitutionality of the individual health insurance mandate included in the 2010 Affordable Care Act. Roberts concluded that the individual mandate was “necessary,” but not “proper.” If a requirement to purchase a product qualifies as a “great” and “independent” power, then so too does a general power to exclude immigrants, which is surely a major form of federal authority, if anything is. The power to exclude migrants affects the welfare and freedom of millions of people, both immigrants and natives, arguably much more so than the power to mandate the purchase of a product.

The Migration or Importation Clause

The Migration or Importation Clause of the Constitution states that “[t]he 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.” In and of itself, the Clause does not grant Congress any additional powers. To the contrary, it is a limitation on power. But it is sometimes argued that the limitation on congressional power to prohibit “migration or importation” of persons until 1808 implies that Congress had such a power to begin with. The word “migration” suggests that that power extended to the prohibition of voluntary immigration, as well as the importation of slaves (the principal focus of the Clause). Most likely, however, the inclusion of the term “migration” was not meant to imply a general federal power to restrict migration, but was a euphemism intended to bolster the pretense that the Constitution did not endorse slavery. As John Jay – the first Chief Justice of the Supreme Court, and coauthor of the Federalist Papers - pointed out in an 1819 letter discussing the Clause:

It will, I presume, be admitted that slaves were the persons intended. The word slaves was avoided, probably on account of the existing toleration of slavery and of its discordance with the principles of the Revolution, and from a consciousness of its being repugnant to the following positions in the Declaration of Independence, viz.: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness.’”[13]

James Madison similarly argued that the Clause was intended to protect the slave trade against limitation prior to 1808, and that its phrasing was due to “scruples against admitting the term ‘slaves’ into the Instrument.”[14] In Federalist 42, Madison decried “[a]ttempts [that] have been made to pervert this clause into an objection against the Constitution, by representing it…as calculated to prevent voluntary and beneficial emigrations from Europe to America.”[15]

Even if the Clause does imply a power to limit the “migration” of some voluntary arrivals, it does not follow that Congress was assumed to have a general power to forbid immigration. In addition to the importation of slaves, indentured servants were also commonly brought into the country during the colonial era and the early republic. Unlike slaves, indentured servants came of their own free will, and therefore might not be described merely as objects of “importation.” But their passage was paid for by employers in America, and the indentured servants were thereafter required to work for them for several years to pay off their debt. Indeed, eighteenth century Americans often did consider indentured servants to be “articles of commerce,” and therefore within the scope of the commerce power, even though their migration was voluntary.[16]

The Power to Define and Punish Offences against the Law of Nations

A few scholars have argued that Congress has a general power to exclude immigrants by virtue of its authority to “define and punish…Offences against the Law of Nations.” As they point out, eighteenth century understandings of the law of nations generally assumed that each state has the authority to restrict the entry of aliens, largely as it sees fit, which in their view means that the Define and Punish Clause gives Congress the power to exclude immigrants.[17] But the fact that international law recognized the exclusion of aliens as a power of sovereign states does not mean that a violation of a national law restricting migration is thereby a violation of the law of nations.

In the eighteenth century, and even today, international law recognizes exclusive state authority to make laws on a wide variety of subjects. That does not mean that any violation of national laws on those issues becomes a violation of international law. For example, states generally have exclusive authority over domestic violent crime. Yet that does not make every act of rape and murder a violation of international law, even if committed by an alien on the state’s territory.

Inherent Congressional Power

Even if Congress does not have an enumerated power to restrict immigration, perhaps that authority is somehow inherent in the structure of the Constitution or in the very nature of government. That was in fact the basis on which the Supreme Court upheld the Chinese Exclusion Act in 1889, in the case that first established plenary congressional power over immigration. The Court ruled that the power to “exclude aliens from its territory… is an incident of every independent nation” and therefore an “incident of sovereignty belonging to the government of the United States.”[18]

But Article I of the Constitution explicitly enumerates several powers that are much more clearly essential to the very existence of government than immigration restrictions are. For example, it enumerates the power to declare war and the power spend money to provide for “the common Defence.” If any powers are inherent in the structure of the Constitution or the very nature of government, it is these. Similarly, if the Constitution presumes such an inherent power to restrict migration, surely there is an equally inherent power to control naturalization. It is difficult to imagine a reason why Congress would have inherent power over immigration, yet not over naturalization. Yet Article I includes an explicit grant of the power to establish a “uniform Rule of Naturalization.”

Moreover, by the time the Court ruled in favor of the inherent power theory in 1889, the United States had successfully existed as an independent nation for many decades without exercising a general federal power to exclude immigrants. That strongly suggests that there is no inherent need for such authority, and that the nation could continue to function without it. If far more fundamental aspects of sovereignty had to be enumerated in the Constitution before they could be granted to the federal government, the same is true of the power to forbid immigration.

Even in the absence of a general power, Congress can still restrict the entry of some foreigners by using its other enumerated powers. For example, the power to declare war and to spend money for the “common defence” includes a power to forcibly restrict entry by enemy spies, terrorists, and soldiers. The power to “define and punish” offenses against “the law of nations” presumably allows Congress to restrict the movement of pirates and other violators of international law. But there is no general enumerated power giving Congress the authority to exclude migrants simply because they are foreign nationals or were born outside the United States.

Inherent Executive Power

Like Congress, the President has no enumerated power to restrict immigration. However, some have suggested that he might have inherent executive authority to restrict the entry of foreigners into the United States. Article II of the Constitution gives all “executive” power to the president. This wording presumably gives the president the authority to wield any power that is inherent to the nature of the “executive.” Perhaps that concept includes power over immigration.

As legal scholar Michael Ramsey points out, “the traditional eighteenth century executive – notably the English monarch – had the power to decide when to admit aliens to the realm as part of the executive power over foreign affairs.”[19] But even if this theory correctly describes the powers of the king of England and other European monarchs, it does not follow that early Americans agreed with this view. To the contrary, many denied that the king had any such authority. The Declaration of Independence claimed that George III had exceeded his rightful authority when he “endeavored to prevent the population of these states” by preventing “foreigners” from migrating to the colonies.

When the Alien Acts of 1798 gave the president the power to exclude “all such aliens as he shall judge dangerous to the peace and safety of the United States,” and those suspected of “treasonable or secret machinations against the government,”[20] James Madison and others denied that any such power was granted to the president or any other agent of the federal government, and their view was the dominant reaction to the Act.

Just as Congress did not automatically possess the standard powers of other contemporary legislatures, it is dangerous to assume that the president necessarily had inherent powers similar to those of other contemporary executives. In both cases, such an assumption would render many of their enumerated powers superfluous. For example, eighteenth century monarchs generally possessed inherent authority to command the armed forces and receive foreign ambassadors. Yet both of these powers are specifically enumerated in the case of the president. The same goes for the power to issue pardons, which was also a standard prerogative of monarchs, and was nonetheless also specifically enumerated in the Constitution.

Prospects for Change

It is unlikely that longstanding precedents giving the federal government broad power over immigration will be overruled in the near future. And there are legitimate differences of opinion on the issue of whether and to what extent long-established but wrong precedents even should be overruled.

But there are still incremental steps the judiciary can take to curb the exercise of unconstitutional federal power in this field. For example, courts could scrutinize new immigration restrictions with greater skepticism than previous ones. New restrictions are not supported by the same sort of long-standing reliance interests as past constraints might be.

Even if the Supreme Court never overturns or significantly narrows the structural scope of federal power over immigration, recognition of the dubious basis of federal power in this area should at least lead it to apply the same individual-rights limits in this field as apply to other exercises of federal power that have a stronger foundation in the text and original meaning. That would require cutting back on decisions such as the travel ban ruling in Trump v. Hawaii that give special deference to the president and Congress when it comes to infringements on individual rights arising from immigration policy.[21] It makes little sense to give the federal government special deference when it exercises powers whose justifications are dubious to begin with.

The struggle to roll back federal power in this area is likely to be a long and difficult one. As with the Civil Rights Movement and other efforts to strengthen constitutional protection for poor, politically weak, and often unpopular minorities, this one is likely to require political mobilization as well as purely legal argument. In this essay, I cannot even attempt to describe how such a movement might work. But I hope to reopen the conversation on the constitutional issues at stake. Even if we cannot yet overthrow this naked emperor, we should at least begin to question his legitimacy.

Notes

[1] Alien Friends Act, ch. 58, 1 Stat. 570, 571, § 1 (1798).

[2] Virginia Resolutions of 1798, Gen. Assemb. (Va., Dec. 24, 1798).

[3] Thomas Jefferson, Draft of Kentucky Resolution, Oct. 4, 1798. The Papers of Thomas Jefferson, vol. 30, 536 (2003).. The final version of the Kentucky Resolution did not include this language, though it did condemn the Alien Act as unconstitutional. Kentucky Resolution (Gen. Assembly, Dec. 3, 1798).

[4] See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 University of Chicago Law Review 101 (2001).

[5] Arizona v. United States, 567 U.S. 387, 394 (2012) (quoting id.).

[6] See 1 Annals of Congress: The Debates and Proceedings in the Congress of the United States 1109-25 (Washington DC: Gales & Seaton, 1834-56).

[7] Id. at 1118 (statement of Rep. James Madison).

[8] Id.

[9] McCulloch v. Maryland, 17 U.S. 316, 413-15 (1819).

[10] For more detailed discussion, see Ilya Somin, The Individual Mandate and the ‘Proper Meaning of Proper,’” in The Health Care Case: The Supreme Court’s Decision and its Implications (Nathaniel Persily, et al. eds., New York: Oxford University Press 2013); Gary Lawson, et al., The Origins of the Necessary and Proper Clause (Cambridge: Cambridge University Press 2010); and Gary Lawson & Patricia Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 267 (1993).

[11] The Federalist No. 33 (Alexander Hamilton).

[12] McCulloch, 17 U.S. at 411, 421.

[13] The Founders Constitution vol. 3, 296 (Philip Kurland & Ralph Lerner eds. Chicago: University of Chicago Press, 1987) (John Jay to Elias Boudinot, Nov. 17, 1819).

[14] Id. at 298 (James Madison to Robert Walsh, Nov. 27, 1819).

[15] The Federalist No. 42 (James Madison).

[16] See Mary Sarah Bilder, The Struggle Over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Missouri. Law Review 743 (1996).

[17] For examples of this sort of argument, see, e.g., Patrick J. Charles, The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: An Historical Perspective, 15 Tex. Review of Law and Policy 61, 103-105 (2010) and Robert Natelson, The Original Constitution: What it Actually Said and Meant 123-24 (3d ed. 2014).

[18] Chae Chan Ping v. United States, 130 U.S. 581, 603, 609 (1889).

[19] Ramsey, The Constitution’s Text and Foreign Affairs 208 (2007).

[20] Alien Friends Act, ch. 58, 1 Stat. 570, 571, § 1 (1798).

[21] I criticized the idea of special deference on immigration policy in greater detail in Michael Z. Mannheimer and Ilya Somin, The Bill of Rights is the Best Defense Against a Travel Ban, The Hill, Apr. 24, 2018, available at http://thehill.com/opinion/civil-rights/384457-the-bill-of-rights-is-th….