Over at Open Borders, Ilya Somin argues that the original meaning of the Constitution restricts Congress’s power to limit immigration. I am broadly sympathetic with Ilya’s argument, but I believe that the Constitution’s original meaning does not support libertarian type conclusions as much Ilya seems to suggest. It is my experience that the Constitution’s original meaning usually cuts in a number of directions and balances competing considerations. Let me address three issues.
Congress’s Limited Powers. Ilya argues that the Constitution does not give Congress the power to regulate immigration as such. I agree. But I think that Congress does enjoy a variety of powers that allow it to regulate various aspects of immigration. In this article, John McGinnis and I discuss various ways that Congress might enjoy some powers over immigration, but not complete authority. In particular, I believe that Congress can regulate the crossing of borders to sell a commodity and that it is quite possibly the case, based on the analogy to navigation, that Congress could prohibit the movement of persons on international (and interstate) highways. That would still leave as beyond Congress’s powers the movement from one state to another across other passageways. Congress would also have had significant power over the territories, which would have included large portions of the United States. Congress may also have shared powers with the President – a shard power that requires both the President and the Congress to agree on restricting immigrants as opposed to the current arrangement where the President must follow Congressional directions if they are nondiscretionary. See here at footnote 45. Finally, Congress might have some powers over immigrants through its war, foreign affairs, and international law powers. Thus, while Congress could not pass the comprehensive immigration laws it passes now, it would have significant pockets of authority.
State Powers. Ilya neglects that if Congress did not have these powers, then the states would have them. See Mike Ramsey on this as well. In many cases, this would allow strongly anti-immigrant states to block immigration. At the same time, it would allow pro-immigrant states to allow immigrants into a border state, and once there they might use the interstate highways to travel to other states. Allocating prohibition authority at the state level is often more libertarian because comprehensive action then requires approval by all or most states and that seldom occurs without a consensus. This, of course, would not have troubled the Framers, since at that time the country embraced immigrants. See footnote 45 again.
Ilya notes that not until the Chinese Exclusion Act of 1882, which was popular due to widespread anti-Chinese prejudice, did Congress adopt a significant law banning migration. That law was approved by the Supreme Court based on reasoning that blatantly ignored the limited enumerated powers of Congress. But suppose that the Supreme Court had enforced the original meaning. Given the popularity of the Act, there might have been a good chance that a constitutional amendment would have been passed that would have given the Congress this authority over immigration. If that is the case, then the Constitution would deny the federal government power over immigration only because the Court wrongfully approved it.
In the end, I agree with Ilya that the freedom of immigration would probably be more protected if the original meaning of the Constitution were followed. But I think the story is more complicated than at first it seems.