He may seize a few words from jurists here and there to support his version of extreme deference, but he is deaf to the jurisprudential music of the era.
Mike Ramsey recently had a post discussing Congress power to regulate immigration under the original meaning of the Constitution. I largely agree with Mike, but would like to develop the argument a bit more. I should note that my argument here is not based on extensive research. Instead, it is my current sense of the original meaning and what I believe that a more exhaustive review would establish.
The original meaning of the Constitution does not give Congress the power to regulate immigration as such. Let’s repeat this: there is no specific power over immigration. So the Supreme Court appears to have badly misinterpreted this issue by claiming that Congress has the power to regulate immigration based on its inherent powers. See The Chinese Exclusion Case (1889)
If the Constitution does not grant a specific power to Congress to regulate immigration, then does that mean Congress has no power over immigration? Could the Framers really have intended to preclude Congress from exercising such power?
Here I think the answer is complicated, but the short answer is that the Constitution does not allocate the power over immigrants to one entity, but instead to a variety of entities, including the Congress, the President, and the states. Congress has the power to regulate commerce with foreign nations and that probably allows it to prevent immigrants from entering the United States through commercially regulable entities, such as ships and international highways. Thus, this explains, if nothing else does, the Constitution’s prohibition on the migration or importation of persons.
But this certainly does not cover all immigration. A person walking over the border through the country-side would likely not involve commerce. This action certainly could be restricted by the states. But what if a state does not want to restrict the immigrants? Could the Constitution really leave this to the states? And I think the answer is, yes! At the time of the Framing, the country generally embraced new immigrants, since it had plenty of room and needed labor. It was not focused on preventing immigrants from entering. (I also make this point in this article.)
Finally, as Mike Ramsey, suggests, one might conclude that the President enjoys, as part of his executive power, the authority to grant passports. And therefore Congress can, under the Necessary and Proper Clause, prohibit entry into the United States without the President’s permission. I am not as confident as Mike is of this type of argument, but it is certainly a very plausible interpretation. But note an important implication of it. Congress cannot control which immigrants the President allows to enter. Instead, it can only impose penalties for those who enter without his permission. Thus, it does not get us the current immigration power. Again, this is a plausible result, given that the Framers were not focused on preventing immigration.
The politics of this position are interesting. Conservatives are thought to be against unrestricted immigration and therefore should dislike this interpretation. Liberals might like it for favoring immigration, but oppose it because they like broad national authority. However one settles the politics, what is interesting is that the original meaning here does not clearly favor the conservative political position — even though the original meaning is often assumed to further conservative political positions generally.