Yet another argument saying the government can’t restrict immigration

Jazz Shaw:

Mondays are probably the best day to tackle craziness when it crops up and this case is no exception. For reasons which are completely beyond me, Ilya Somin of the Volokh Conspiracy has once again taken to the pages of the Washington Post, making yet another argument claiming that the federal government has no power to restrict immigration in any fashion. We’ve already tackled some of his arguments here in the past, but let’s see what he’s up to this time.

The latest version of this theory deals with a denial that the Congress has the authority to “define and punish . . . Offenses against the Law of Nations.” In it, Somin takes Rob Natelson to task for his claim that long standing interpretations of international law give each country such authority. While I’m no fan of invoking “international law” when talking about what the United States can and can’t do, that one seems to be a no brainer. The fact that nations have had borders and armies since the dawn of recorded history argues in favor of it.

But Somin can’t even get into that argument without first attempting to brush away recent criticism of his other claims. Here’s how it kicks off.

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.

You’ll note that Somin provides links in his text, suggesting supporting evidence for the assertion that things like the Migration or Importation Clause have no bearing on the discussion. But just as happened last time this cropped up, one click lets us know that the source Ilya Somin points to in support of his argument is… Ilya Somin. It was a previous piece he published after people (including yours truly) took umbrage with is other self-referenced work at an outlet called “Open Borders” making the same argument. In this one he summons up some of the Federalist Papers authors to buttress his claims.

But the inclusion of the term “migration” was not meant to imply a general federal power to restrict migration, but was a euphemism intended to bolster the pretense that the Constitution did not endorse slavery. As John Jay – the first Chief Justice of the Supreme Court, and coauthor of the Federalist Papers – pointed out in an 1819 letter discussing the Clause:

It will, I presume, be admitted that slaves were the persons intended. The word slaves was avoided, probably on account of the existing toleration of slavery and of its discordance with the principles of the Revolution, and from a consciousness of its being repugnant to the following positions in the Declaration of Independence, viz.: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness.’”

While this is growing tiresome to deal with, let’s at least address the question of what John Jay wrote, oh so long ago. Clearly an argument could be made that some of the founders intended part of that clause to provide a general cover for slavery and were loath to talk about the subject in the founding documents. But even if we are to accept that interpretation, the Constitution talks about “the migration and importation of such persons… think proper to admit.” The two key points here are that migration implies voluntary movement where importation infers goods and property. The latter could obviously be a reference to slaves while the former speaks to actual migrants moving under their own volition. And the word “admit” is rather telling as well, since the option to “admit” implies that someone is asking permission. I doubt many of the slaves were begging to get in. But more broadly, saying that the clause hinted at slavery doesn’t preclude it also covering voluntary emigration from other nations. The two are not mutually exclusive.

In the broader sense, Somin then goes back to arguing that the phrasing of that clause implies a limitation of power, not a granting of it to the federal government after 1808. Allow me to simply repeat here what I wrote two weeks ago when he first attempted this argument.

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