Robert G. Natelson (Independence Institute, Univ. of Montana Law School (ret.)) has posted The Power to Restrict Immigration and the Original Meaning of the Constitution’s Define and Punish Clause (52 pages) on SSRN. Here is the abstract:
The Supreme Court and constitutional commentators have long struggled to identify the provision in the Constitution, if any, that grants Congress authority to restrict immigration. This article demonstrates that authority to restrict immigration is included within the Constitution’s grant of power to Congress to “define and punish . . . Offenses against the Law of Nations.”
And from the introduction (footnotes omitted):
Because immigration is movement across national boundaries, the reference to “the Law of Nations” seems to invite consideration of whether the clause authorizes Congress to restrict immigration. Surprisingly, very few commentators have accepted the invitation. Those discussing the Define and Punish Clause [of Article I, Section 8) almost invariably neglect to address immigration, and those discussing immigration almost invariably overlook the Define and Punish Clause.
A few commentators argue the Constitution does not grant the federal government any authority over immigration at all—that the document reserved the subject to the states. Most writers seem to recognize, however, that the Constitution’s text contradicts that conclusion. Article I, Section 9, Clause 1 provides as follows:
The 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.
Although this provision usually is identified as a concession to the slave trade, the term “Migration,” then as now, was commonly applied to free individuals. A free person migrating from France to New York State before 1808 was within the coverage of this clause: Before 1808 Congress could not prevent his immigration if New York State was willing to accept him. Beginning in 1808, Congress could prevent him from coming. But what provision of the Constitution granted Congress that authority?
The article then reviews eighteenth-century sources in details to argue that immigration was a law of nations issue. For example, as to Vattel, the best-known international law writer in America (footnotes omitted):
Book II [of Vattel's The Law of Nations] leaves no doubt that immigration was a “law of nations” issue. Here is part of Book II’s treatment of immigration:
The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual.
Vattel added that “the least encroachment on the territory of another is an act of injustice . . .” Like other writers, he rejected Grotius’s view that a sovereign must suffer immigrants to enter deserted territories under the control of the sovereign:
As every thing included in the country belongs to the nation,—and as none but the nation, or the person on whom she has devolved her right, is authorised to dispose of those things . . . ,— if she has left uncultivated and desert places in the country, no person whatever has a right to take possession of them without her consent. Though she does not make actual use of them, those places still belong to her: she has an interest in preserving them for future use, and is not accountable to any person for the manner in which she makes use of her property.
The categorical right to exclude also implied the right to admit under conditions:
Since the lord of the territory may, whenever he thinks proper, forbid its being entered . . . , he has no doubt a power to annex what conditions he pleases to the permission to enter. This, as we have already said, is a consequence of the right of domain.
The law of nations also encompassed an individual duty to obey: “We should not only refrain from usurping the territory of others; we should also respect it, and abstain from every act contrary to the rights of the sovereign;” and “[E]very one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual.”
Apparently, in Vattel’s view, a sovereign that does not restrain its inhabitants from breaching another country’s immigration laws also violates the law of nations: “If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation, than if he injured it himself.”
This is an important attempt to answer a vexing question, and deserves close attention.
EARLIER: Professor Natelson has made this argument in shorter form here. Andrew Hyman has made the argument on this blog here. For a counterargument, see here from Ilya Somin.
Posted at 6:16 AM