Alex Loomis on Immigration and the Define and Punish Clause
Michael Ramsey

As I argue in this year's Harvard Journal of Law and Public Policy (you had a post about my much rougher draft last year), the word “define” imbues Congress with significant creative powers. Even if failure to restrict immigration did not violate the law of nations in 1788 and does not violate international law now, Congress’s power to define offenses against the law of nations would allow it to depart from extant international law. I think the text of the Constitution, early Constitutional understanding, and Supreme Court precedent all point plainly in this direction. (My draft earlier argued that Congress could use the clause to change customary international law; I dropped that argument because that seemed to get into legislative motive and had less support; my view now is just that no state has to agree with U.S. views on international law.)

 

The Neutrality Act of 1794, which was passed pursuant to the define and punish clause, penalized acts that did not violate the law of nations. Further, the Neutrality Act was defended in part under a state responsibility theory: states have a generic obligation to prevent their people from doing harm to other states. It wouldn’t be hard to fit restrictions on migration under that theory. Finally, some Federalists defended the Alien Acts, an early set of immigration statutes of sorts, as a valid exercise of the define and punish power, though they mostly meant that Congress could use the define and punish clause as a measure to punish another state at war with the United States (see pp. 443–45 n.136 of my paper).

 

That said, the biggest problem with the define-and-punish theory is that, to my knowledge, Congress has never taken the position that failure to restrict excessive migration violates international law. And textually, it would be difficult to justify defending an exercise of the define and punish clause if Congress acknowledged there was no nexus to an extant international legal obligation. As far as I know, that has never happened. 

 

Focusing on the word “define” also (1) responds effectively to Rob Natelson’s concern about other states’ decisions shifting Article I powers, and (2) distinguishes between the define and punish clause’s reference to the “law of nations” and the Seventh Amendment’s reference to “common law" because the Amendment does not give courts or Congress the power to "define" common law.