Andrew Hyman comments on this post:
Several scholars have argued for a dormant immigration power analogous to a dormant commerce clause. For citations, see note 68 of this 2013 essay by Professor Kerry Abrams.
Seems to me that the theories about dormant clauses make little sense. The power to regulate commerce, for example, is plainly not indivisible, given that everyone agrees Congress is free to divide it.
Unsurprisingly, I'm no fan of the dormant immigration power (indeed, it seems much weaker that the dormant commerce clause, as Congress has no express comprehensive immigration power and the states regulated immigration without much objection for much of the nineteenth century).
Also, the second point is a good one. The fact that a regime of concurrent state and federal regulation of interstate commerce can exist is strong evidence that the grant of the power to Congress is not, in itself, a denial of the power to the states. As I put it in The Constitution's Text in Foreign Affairs (p. 275):
Hamilton [in Federalist 32] … argued that under the Constitution, "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that act, exclusively delegated to the United States." Exclusive delegation would arise, he continued, not only from express federal exclusivity or express preclusion of the states, but also where the Constitution "granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant."
But if concurrent regulation of interstate commerce is possible (as everyone agrees it is), then the authority granted to Congress to regulate interstate commerce is not "absolutely and totally contradictory and repugnant" to the states retaining it as well.
Posted at 11:16 PM