The text of the Constitution strikingly does not explicitly give Congress any general authority to enact immigration restrictions. Conventional efforts to find that authority in the Naturalization Clause, the Commerce Clause, and supposedly “inherent” powers of sovereignty run into serious problems. Nor is such authority implied by the the Migration or Importation Clause.
In a recent op ed in The Hill, legal scholar Rob Natelson argues that federal power over immigration can instead be derived from Congress’ power to “define and punish … Offenses against the Law of Nations”:
The law of nations” was the usual 18th-century term for international law. It included standards of conduct among nations. But it also encompassed some rules within national boundaries. A power to “define and punish” an “offense against the law of nations” included protecting foreign ambassadors against interference, protecting safe-conduct passes — and restricting immigration.
Why have so many writers — including some constitutional law professors — missed this? One reason is that 18th-century legal terms and categories were different from those we use today. For example, a modern law book might feature a heading for “immigration law.” But in William Blackstone’s “Commentaries,” the English book that served as America’s most popular legal treatise, there was no such heading.
Instead, Blackstone addressed the topic in his chapter on the British king’s prerogative powers. When discussing safe-conduct passes, Blackstone observed that without them “by the law of nations no member of one society has a right to intrude into another … [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient.”
The law of nations argument is creative. But it ultimately fares no better than more conventional rationales for a general federal power over immigration.
Eighteenth century understandings of the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit. 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. Blackstone and the other eighteenth century writers cited by Natelson make the former claim, but not the latter.
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. If an American commits a violent crime on Mexican soil or vice versa, there is no violation of international law. The same point applies to border crossing by peaceful migrants. It too sometimes violates national law, but does not thereby violate any international law.
Natelson quotes Emmer de Vattel, a prominent 18th century authority on international law, who wrote that in “Switzerland and the neighboring countries … the law of nations … did not permit a state to receive the subjects of another state into the number of its citizens.” Significantly, however, this passage does not address migration, but grants of citizenship. And it does not claim that the receiving state has an international law right to exclude migrant, but rather that the sending state has a right to prevent its subjects from pledging their allegiance to a foreign power. The claim here is that rulers have a monopoly over their subjects’ allegiance, which the latter are forbidden to change without the ruler’s consent. This was disputable even in the 18th century. Many states, including Great Britain took in refugees from other nations (e.g. – Protestants fleeing persecution in France) and granted them citizenship without the consent of their original rulers. The idea of an international law right of rulers to keep their subjects from becoming citizens of other states is even more dubious today, when international human rights law explicitly recognizes a right of emigration, which undercuts the previously traditional notion of a sovereign’s monopoly power over its citizens. In any event, here as elsewhere, power over grants of citizenship is separable from power over migration.
A slightly different variant of the law of nations argument is that the Define and Punish Clause gives Congress the power to forbid any acts that a foreign nation has an international law obligation to prevent, such as the use of its territory to launch attacks against a neighbor. But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them. For example, no serious commentator contends that Mexico’s failure to prevent migration by its citizens to the United States is a breach of its international law obligations, even if the migrants violate US immigration law.
Finally, one could argue that the Define and Punish Clause gives Congress broad power to define almost anything it wants as an offense against the law of nations. But such a power would undermine the overall scheme of enumerated powers and make many of Congress’ other listed powers superfluous.
For the moment, the relationship between the Define and Punish Clause and immigration law has only limited real-world significance. Since the Chinese Exclusion Cases of the 1880s, the Supreme Court has held that Congress has inherent power to restrict migration, despite the fact that it cannot be found in any specific provision of the Constitution. Living constitutionalists can embrace this theory (whose origins were heavily influenced by late-19th century racism and xenophobia) without much concern about whether it fits the text or the original meaning of the Constitution. But the lack of any textual basis for congressional power over immigration should bother originalists and textualists. In time, it might help lead courts to pare back the pernicious “plenary power” doctrine, which holds not only that Congress has virtually unlimited authority over immigration, but that it is not even subject to most of the individual rights constraints that restrict other exercises of federal power.
NOTE: Some of the material in this post is adapted from an academic article I am working on, about federal power over immigration.
Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/21/congress-power-to-define-and-punish-violations-of-the-law-of-nations-does-not-give-it-authority-over-immigration/