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The Lawful Neutral Case for Deferred Action

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If life were classic Dungeons & Dragons, many opponents of immigration would be Lawful Neutral.  The law is the law; good or bad, everyone has to obey the rules.  In his defense of Obama's deferred action policy, Ilya Somin points out that Lawful Neutral Americans should favor non-enforcement of U.S. immigration restrictions because they've been unconstitutional from the get-go.  The Constitution only gives the federal government control over naturalization, not migration:
Under the original understanding, Congress did not have a general power to restrict immigration (though it did have power over naturalization). That may not matter to adherents of "living constitution" theories of legal interpretation. It also should not matter to those who believe that the Constitution generally means whatever Supreme Court precedent says it means. Immigration restrictions have been deemed permissible under longstanding precedent dating back to 1889.

But it should matter to those who consider themselves constitutional originalists, which includes many of the conservatives who have been most vehement in opposing Obama's actions today. If you believe that the Constitution should be interpreted in accordance with its original meaning, and that nonoriginalist Supreme Court decisions should be overruled or at least viewed with suspicion, then you should welcome the use of presidential discretion to cut back on enforcement of laws that themselves go against the original meaning.

But the Supreme Court has ruled otherwise for over a century?  That's hardly surprising given the tight correlation between what the Justices personally favor and what they imagine a two-hundred-year-old document says.


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COMMENTS (25 to date)
Christopher Chang writes:

You may have heard of something called the 14th amendment. Immigration and naturalization aren't necessarily tightly linked, but the US's move to consistent birthright citizenship made them so, and 1889 was a reasonable time for the logical consequences to be spelled out in law.

There are plenty of examples of flagrant motivated reasoning in law, but this isn't one of them.

Glenn writes:

It can be said that you've jumped the shark here - you better understand the Constitution of the United States than a century of this nation's best and brightest jurists, because what they "imagine" it says is "closely correlated" with what "the Justices personally favor".

A weakness you yourself do not share, as evidenced in your well grounded in legal precedent claim that prosecutorial discretion extends to the President of the United States publicly announcing that he has instructed his employees to ignore a whole set of laws, legitimate and as drafted by the Legislature, because he finds them inconvenient.

Remarkable naivete dressed in faux trappings of moral superiority on display here.

Jeff writes:
...tight correlation between what the Justices personally favor and what they imagine a two-hundred-year-old document says.

An affliction which does not effect the esteemed Mr. Somin, I presume. And we know this...how? Because he agrees with you, right? Uh huh.

DangerMan writes:

That part about "shall protect each of them against Invasion" not good enough?

Brian writes:

"Under the original understanding, Congress did not have a general power to restrict immigration (though it did have power over naturalization)."

Complete and utter nonsense. Besides the power to provide a defense of the nation against foreign invasion, Congress also has the power to regulate both interstate commerce and commerce across the border. Since immigration fundamentally involves the importation of labor, the federal government certainly has the power to regulate it. As always, the question is whether it should and not whether it may.

Milo Minderbinder writes:

From Article 1, Section 9

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.

If Congress has no power to restrict immigration, then why was this clause necessary?

MikeP writes:

If Congress has no power to restrict immigration, then why was this clause necessary?

It was part of a compromise for Congress to delay the eventual prohibition of the importation of slaves. It definitely does not imply anything about any power to limit "importation" of immigrants.


As James Madison notes in Federalist 42:

Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.
MikeP writes:

It is patently obvious from contemporary writings as well as the Constitution itself that the Constitution does not empower the federal government to regulate immigration.

But this argument is, in the end, disingenuous.

What is the over-under for the number of days it would take to pass a Constitutional amendment that said, "Congress shall have the power to regulate immigration"?

That amendment would pass trivially today, as it would have passed trivially in 1965, 1924, or 1882. If the federal government ever decided to actually behave constitutionally, there is no question the Constitution would be changed to allow it to behave as it now does with regard to immigration.

Milo Minderbinder writes:

It was part of a compromise for Congress to delay the eventual prohibition of the importation of slaves. It definitely does not imply anything about any power to limit "importation" of immigrants.

Putting on my Lysander Spooner hat here. It doesn't say slaves, so it's not about slaves.

Of course Spooner probably wouldn't agree with any restrictions on immigrants.

MikeP writes:

I expect Lysander Spooner would say that the less one attempts to glean a general principle from the wording of a compromise on the expiration of an unmentionable institution, the better.

ColoComment writes:

IANAL, but common sense and plain reading lead me to infer from "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,..." that Congressional prohibition IS permitted after 1808.
Which would also imply that at that time Congress would have the power to determine by legislation the "proper" qualifications and limits for such migration or importation.

Daublin writes:

Many people who complain about partisanship talk a lot about "compromise". I would rather they focus on understanding and supporting our common values.

In this case, it should be obvious to everyone that a decision like this is supposed to be up to the legislature. We should insist on public officials that will follow the intent of our government structures.

MikeP writes:

IANAL, but common sense and plain reading... would also imply that at that time Congress would have the power to determine by legislation the "proper" qualifications and limits for such migration or importation.

I'll grant that the cited author of the Constitution is not a lawyer either.

Fortunately, the author of Tucker's Blackstone is:

The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states.... It might therefore have been extremely impolitic in the states to have surrendered the right of denization, as well as that of naturalization to the federal government, inasmuch as it might have operated to discourage migration to those states, which have lands to dispose of, and settle; since, it might be a disagreeable alternative to the states, either to permit aliens to hold lands within their territory, or to exclude all who have not yet completed their probationary residence within the U. States, so as to become naturalized citizens, from purchasing, or holding lands, until they should have acquired all other rights appertaining to that character.
Ak Mike writes:

With respect, MikeP (for having located this treatise), I think your implication that "denization" equals migration is not supported by your cite. Checking out your link, it appears that Tucker means by denization the granting of rights to denizens who are not citizens, and suggests that the states should be permitted to grant or withhold, e.g., rights to own property, to vote, etc., from those within state borders who are not citizens. There is no suggestion in Tucker that "denization" equals the right to allow foreign migration.

Also, the issue about the whether the migration and importation clause in the constitution allows federal control of migration is interesting and not simple. Reading the 1807 statute that banned the importation of slaves (The Act Prohibiting Importation of Slaves of 1807 (2 Stat. 426)), it does seem to focus on slaves as property, and is aimed at the importers and not at the slaves themselves. Thus it seems to be under the commerce clause power, and arguably that's different from the power to prohibit immigrants. On the other hand, use of the word "migration" in the constitutional clause, *separately* from "importation" does imply to me that Congress has the power to ban migration of voluntary immigrants.

MikeP writes:

I find it striking that Tucker does not mention that the federal government has the power to limit immigration in a long dismissive pointing out that state governments have all authority to grant any status short of federal naturalization.

As noted above and by Madison, Section 9 is about slaves. That slaves might be said to have been "migrated" or "imported" yields the odd compromise wording without mentioning the unmentionable.

MikeP writes:

By the way, when did these comment threads become a haunt of liberals and their living constitutional interpretations?

Section 8 enumerates the powers of Congress. If the Framers wanted to empower Congress to regulate migration, they would have done it right there -- just as they did for naturalization.

Next you all will be telling us that the power to regulate commerce among the several states means the government can regulate a farmer growing corn to feed his own hogs.

Hana writes:

There is no more authoritative quote than one that agrees with me.

Ak Mike writes:

Except that MikeP's quote doesn't really agree with him.

Section 9 is about both migration and importation. The statute that is specifically authorized by Section 9, which I cited above, says nothing about migration, because slaves don't immigrate, rather they are imported.

MikeP writes:

Section 9 is about things that Congress can't do.

Things that Congress can do are found in Section 8.

Ak Mike writes:

So, MikeP, what is the point of banning restrictions on migration until 1808 if congress has no power to restrict migration?

MikeP writes:

Because the Framers did not want Congress to write a law that said "The migration of slaves into the United States is prohibited" prior to 1808.

What was the point of the Framers not empowering Congress "To establish uniform rules of migration and naturalization" since that would have been the obvious thing to do if they thought that Congress should regulate migration?

Hopaulius writes:

But the Supreme Court has ruled otherwise for over a century? That's hardly surprising given the tight correlation between what the Justices personally favor and what they imagine a two-hundred-year-old document says.

For better or worse, the Constitution invests the Supreme Court with the power over its interpretation. Therefore the Constitution means whatever the Supreme Court says it means.

Brian writes:

"So, MikeP, what is the point of banning restrictions on migration until 1808 if congress has no power to restrict migration?"

"Because the Framers did not want Congress to write a law that said "The migration of slaves into the United States is prohibited" prior to 1808."

MikeP,

According to you, the Constitution does not give Congress the power to regulate migration, so why would the Framers worry that Congress might prohibit the migration of slaves?

The answer, of course, is that Congress DID have the power to regulate the migration or importation of slaves via the commerce clause. That's why this particular prohibition had to be added.

It's important to recognize a fairly subtle point. While the Constitution may not clearly give Congress a general right to regulate immigration, it does give it the power to regulate any migration that is inherently an act of commerce. Importation of slaves is an obvious example, since they were being bought and sold as goods. Migration of an indentured servant, who agrees to work for a period of time in exchange for the boat fare, would be another example. It's unclear whether the Framers went any farther in their understanding of the commerce clause's extent, but it's not a stretch to regard any migration for the purpose of work--the importation of labor--as being covered by the commerce clause. Note that this is the basis for our current immigration system, which treats permanent migration (for which a job will be required) differently than a temporary visitor's visa.

MikeP writes:

It's too bad the Supreme Court in Ping v. US, 1889, couldn't see the penumbras and emanations of Section 9 compromises about the slave trade.

They would then not have been relegated to determine that the federal government has the power to regulate immigration because sovereignty.

John T. Kennedy writes:

"Lawful Neutral Americans should...."


...wise up.

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