The power to control immigration is a core aspect of sovereignty.

• Author: Eastman, John C.
• Position: Response to article by Ilya Somin in this issue, p. 1 - Federalist Society National Student Symposium 2016

Where in our constitutional system is the power to regulate immigration assigned? Professor Ilya Somin argues that the power to regulate immigration is not a power given to Congress because it is not enumerated. (1) But I think it is so clearly a power given to Congress and that such was so well understood at the time of our founding that the Constitution did not even need to specify it. Even so, I think the Constitution does specify it. (2) The notion that the power to regulate immigration is not contained within the power of naturalization (3) is an anachronistic view of the latter power (4) that understands naturalization merely to confer citizenship and not as having anything to do with who can immigrate into this country in order to obtain citizenship.

Of course, in 1787 when that clause was written, immigration and naturalization were largely synonymous because of a couple of facts that are no longer true. First, one did not cross the Atlantic in a number of hours; it was a three-month-long journey. Most people made the trip only once in a lifetime (though if you were a diplomat, you might have to make it several times). However, making that trip meant that you were relocating and taking on a new allegiance and becoming a member of a new body politic.

The second thing was property law. If you were not a naturalized citizen, you could not inherit property--and in many cases you could not even own property. (5) And so, before you made the decision to immigrate, you had to know what the naturalization rules were. Giving Congress the power to naturalize--to determine who can become citizens and members of our body politic--necessarily encompassed the power to decide who could come here in order to put themselves up for that naturalization.

Proof that this was the understanding of the naturalization power is found in the negative implication of the text of Article I, Section 9 of the United States Constitution, which specifically states: "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 [1808] ...," (6) What is the negative implication to be drawn from that restriction on Congress's power? The negative implication is that Congress does have the power to restrict migration and importation, although it cannot exercise that power until 1808. This provision was aimed at slavery, but it says migration and importation, not just importation, and that additional word meant that the prohibition (and hence the implied power) applied more broadly than just in the slavery context. In other words, the Supreme Court was correct when, in the Chinese Exclusion Cases, it recognized that Congress has inherent power over immigration, a power that is essential to and an incident of sovereignty. (7)

However, this notion of sovereignty did not begin in the Chinese Exclusion Cases. Rather, it began forty years earlier in The Passenger Cases. (8) Those cases confronted the fact that New York and Massachusetts each imposed a head tax on every passenger arriving from overseas into their ports. (9) The Court held that the power to grant ingress and egress to and from its territory belongs to every sovereign, and cited Vattel, among others, for that proposition. (10) I think this notion of an inherent foreign affairs power is correct. It...