Response to Gabriel Chin on Commerce and Migration28th September 2018
I would like to thank Professor Chin for his thoughtful comments on my essay. I agree with both of his major points: that federal immigration policy has often involved racial and ethnic discrimination that would be clearly unconstitutional in other contexts, and that I should provide a more detailed explanation for why the Commerce Clause does not give the federal government any general power over immigration.
Racism, Discrimination and the Immigration Restrictions
There can be no doubt that the history of American immigration restrictions is heavily tainted by racial and ethnic prejudice. Professor Chin is himself one of the leading scholars to have chronicled this sad record. Racial motivations were at the root of the 1882 Chinese Exclusion Act, whose upholding by the Supreme Court in 1889 first established the idea that Congress has a general “plenary” power to restrict immigration. The Supreme Court’s decision itself reflects that racism, in its references to the claimed need to exclude “the presence of foreigners of a different race in this country, who will not assimilate with us,” and assertions that “the differences of race” were a major factor in the threat supposedly posed by Chinese immigrants. The role of racism in the origin of the plenary power doctrine does not by itself prove that the doctrine is wrong. But it should at least diminish the respect accorded to the Chinese Exclusion Cases and other similar precedents from the same period. Relative to precedents less tainted by racist motivations, these cases should be judged more by the (weak) quality of their reasoning, and less by precedential value alone.
I also agree with Professor Chin that the courts have often allowed immigration restrictions to be influenced by criteria such as race or religion that would be forbidden in almost any other context. The Supreme Court’s recent decision in the travel ban case is a dramatic example. The majority upheld the President’s policy excluding nearly all entry into the United States by citizens of several Muslim-majority nations, despite overwhelming evidence that the true motive for the exclusion was not national security, but religious bias, openly proclaimed by the president himself. The majority’s reasoning was based on the notion that immigration policy is a special case where the government deserves far greater deference than applies elsewhere.
Even if it is impossible or undesirable to reverse the Supreme Court’s precedents giving the federal government a general power to restrict immigration, the courts should at least subject the exercise of that power to the same constitutional constraints that apply to every other type of federal power – including those much more firmly rooted in the text and original meaning of the Constitution. If, for example, the federal government is not allowed to discriminate on the basis of race or religion when it exercises its undeniable power to regulate interstate commerce, the same should apply to any power it has to restrict immigration.
Professor Chin’s research suggests that the early “plenary power” precedents permitting what we would now consider otherwise unconstitutional discrimination in immigration policy were largely in line with dominant jurisprudence on domestic discrimination during the same era. For instance, the same Supreme Court that allowed anti-Chinese discrimination in immigration policy also decided Plessy v. Ferguson, upholding domestic racial segregation, just a few years later. At the very least the Supreme Court should restore this kind of parity, this time by cracking down on unconstitutional discrimination in immigration policy rather than by permitting it in other areas.
More on Immigration and the Commerce Clause
In the latter part of his reply, Professor Chin rightly suggests that I need to provide a more thorough explanation of why the text and original meaning of the Commerce Clause do not give Congress a general power to restrict immigration. As I pointed out in my lead essay, the dominant view during the Founding era and for a long time thereafter was that the power to regulate interstate and foreign commerce extended to regulating trade in “articles of commerce,” such as various goods. It did not cover mere movement of persons, except in cases where the people in question were specifically engaged in commercial transactions.
As Representative Albert Gallatin, the leading Democratic-Republican spokesman in the debate over the Alien Act of 1798 who later served as Secretary of the Treasury under Thomas Jefferson and was one of the most influential constitutional interpreters among the Republicans, argued that the Commerce Clause could not justify the Act because congressional power under the Clause could only cover “the persons of alien merchants” and “must [be] related to them as merchants—to their professions, not to their existence as men.” He, like Jefferson and Madison (quoted in my lead essay), denied that the Constitution gives Congress any “general authority over aliens.”
It is true, as Professor Chin points out, that Chief Justice John Marshall, in Gibbons v. Ogden (1824), ruled that the power to regulate commerce included a power to regulate commercial passenger vessels. But that is not the same thing as a power to exclude immigration into the United States by aliens, any more than the power to regulate the business of interstate transportation includes a power to forbid interstate migration.
In theory, Congress could use the power to regulate shipping to forbid any vessel to transport aliens into the United States. But that would be leveraging one power to usurp another one not entrusted to the federal government. And it would run afoul of Marshall’s famous stricture, in McCulloch v. Maryland (1819), to the effect that, “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land.” While the line between a pretextual use of power and a legitimate one was admittedly fuzzy, using the power to regulate commerce to claim a general power to restrict immigration seems clearly on the pretextual side of the line.
After all, similar reasoning could be adopted to leverage Congress’ power over interstate commerce into a general power to restrict the migration of Americans from state to state. They too could be barred from travelling from one jurisdiction to another by using ships, stagecoaches, horses, or other modes of commercial transportation. Few if any at the time of the Founding believed that Congress had such broad power to restrict interstate migration under the Commerce power. And if the Foreign Commerce Clause gave Congress a power to bar immigration by foreigners, then the Interstate Commerce Clause gave it the power to bar interstate movement by Americans, since the two literally use the exact same word. Both appear in the Article I Section 8, Clause 3 of the Constitution, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” There is no way the Constitution could have been ratified had it been understood as creating such broad federal power over internal movement.
Professor Chin also cites the 1849 Passenger Cases, in which a deeply divided 5-4 Court struck down several state laws that imposed various kinds of taxes on passengers arriving in port from abroad, as an unconstitutional state infringement on Congress’ power to regulate commerce. This was a complex decision with multiple concurring and dissenting opinions. But it did not endorse anything approaching a general federal power to exclude migrants under the Commerce Clause. Even the justices in the majority did not go so far. Rather, they emphasized that these state policies usurped congressional authority because, as Justice McLean put it in a concurring opinion, they involved “the regulation of the transportation of passengers [which is] a part of commerce.” McLean drew a distinction between “the transportation of merchandise and passengers,” which could be regulated by Congress under the commerce power, and the status of former passengers after they “leave the ship, and mingle with the citizens of the state,” at which point they are outside the scope of congressional control.
In summarizing the views of four of the five members of the majority, Justice Wayne emphasized that states infringe congressional power if they seek to regulate “navigation,” but not if they seek to regulate or even exclude migrants “after they have been landed.” On this theory, the Constitution gives Congress exclusive power to regulate transportation of passengers on the high seas, but only the states had general authority to exclude foreigners from entry and residence.
Unlike McLean, who believed that states could not exclude any migrants whom Congress wished to allow in, except for paupers and carriers of contagious diseases, Wayne argued only that states could not exclude migrants in cases where doing so might interfere with Congress’ exercise of its other powers. For example, it could not exclude those whom Congress wished to permit to enter for “purposes of trade,” nor those whom it wished to make U.S. citizens by naturalization. On this theory, the Commerce Clause did not give Congress any power over the entry of persons whose purpose was to immigrate or to visit for noncommercial purposes. The dissenting justices in the Passenger Cases argued even more forcefully that the Commerce Clause and other federal powers did not extend to immigration, and concluded that the state taxes in question are constitutional.
In order to separate the issues of international and interstate migration, Professor Chin suggests that citizens might have had an implicit constitutional right to interstate movement. He cites Chief Justice Taney’s dissent in Smith v. Turner (1849), which notes that citizens have a right to engage in movement necessary to sue in federal court, petition the federal government, and the like. It is far from clear that Taney’s opinion, written many years after the Founding, is a good guide to the original meaning of the Constitution.
But even if he was right with respect to these points about mobility, they do not (despite his own claim to the contrary) establish a general right to freedom of movement across state lines, but merely to such movement as is necessary to exercise specific federal rights, such as “free access… to the principal departments [of the federal government] established at Washington, but also to its judicial tribunals and public offices in every State and Territory of the Union.” That does not necessarily include a general right to interstate migration.
Moreover, in the very same opinion, Taney emphasized that the power to regulate foreign commerce does not encompass a right to bar immigration—precisely because any such power would also give Congress authority to bar interstate migration:
[I]f commerce with foreign nations could be construed to include the intercourse of persons, and to embrace travellers and passengers, as well as merchandise and trade, Congress would also have the power to regulate this intercourse between the several States, and to exercise this power of regulation over citizens passing from one State to another. It, of course, needs no argument to prove that such a power over the intercourse of persons passing from one State to another is not granted to the Federal government by the power to regulate commerce among the several States.
As Professor Chin notes, the right cited by Taney applied against state governments, no less than the federal government; otherwise states could impede the exercise of a federal right. Yet antebellum states sometimes excluded migrants from other states, particularly those thought likely to be “paupers” or become public charges. Racist state legislatures also sometimes barred free blacks, long before Taney’s erroneous ruling in the Dred Scott case held that the latter could not be American citizens.
Today, such state-based restrictions on mobility would be unconstitutional under the Fourteenth Amendment, which was intended to—among other things—forestall state efforts to restrict the freedom of movement of recently freed African-Americans. As the Supreme Court explained in a 1900 decision, “[u]ndoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment.” But that was not true under the pre–Civil War Constitution.
 See, e.g., Gabriel J. Chin, “Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration,” 46 UCLA Law Review 1 (1998).
 Chae Chan Ping v. United States, 130 U.S. 581 595, 606 (1889).
 I summarize my take on the travel ban case in Ilya Somin, “Donald Trump’s ‘Travel Ban’ is Still a ‘Muslim Ban,’ No Matter What the Court Said,” USA Today, June 26, 2018, available at https://www.usatoday.com/story/opinion/2018/06/26/supreme-court-ruling-travel-ban-ignores-religious-discrimination-column/734697002/. For evidence that the supposed national security justifications for the policy were almost certainly pretextual, bordering on fraudulent, see Ilya Somin, “Evidence Indicates there is no ‘Extensive’ Analysis Backing Trump’s Travel Ban,” Reason, May 24, 2018, available at https://reason.com/volokh/2018/05/24/evidence-indicates-there-is-no-extensive; and David Bier, “Travel Ban is Based on Executive Whim, not Objective Criteria,” Cato at Liberty, Oct. 9, 2017, available at https://www.cato.org/blog/travel-ban-based-executive-whim-not-objective-criteria.
 See Gabriel J. Chin, “Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law,” 14 Georgetown Immigration Law Review 257 (2000).
 8 Annals of Congress 1974-75 (statement of Albert Gallatin).
 Id. at 1975.
 McCulloch v. Maryland, 17 U.S. 316, 423 (1819).
 Passenger Cases, 48 U.S. (7 How.) 283, 283 (1849).
 Id. at 401 (McLean, J. concurring).
 Id. at 405.
 Id. at 420, 425 (Wayne, J. concurring).
 Id. at 406 (McLean, J., concurring).
 Id., 425-26.
 See, e.g., id. at 501-15 (Daniel, J., dissenting).
 Smith v. Turner, 48 U.S. 283, 492 (1849) Taney, J., dissenting).
 Smith v. Turner, 48 U.S. 283, 493 (1849) Taney, J., dissenting) (emphasis added).
 See, e.g., Anna O. Law, “Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State,” 28 Studies in American Political Development 107, 108, 112-15 (2014).
 Williams v. Fears, 179 U.S. 270, 274 (1900).
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