Response to John Eastman on the Limits of Federal Power3rd October 2018
I would like to thank Professor John Eastman for his thoughtful response, which helps crystallize some of the issues at stake in the debate over federal power over immigration. The key problem with Eastman’s arguments is that, if applied consistently, they would sweep away nearly all structural limits on federal power – not just when it comes to immigration, but internally as well. We would end up with sort of almost unlimited federal leviathan that Professor Eastman rightly opposes in other contexts. This is the natural consequence of his arguments based on the Naturalization and Commerce clauses. The inherent authority argument does not imply unconstrained federal power to the same degree, but it has other serious flaws.
The Naturalization Clause
In his discussion of the Naturalization Clause, Professor Eastman correctly points out that some of the Founders thought that naturalization law would influence the decisions of potential migrants. But that is not the equivalent of giving the Congress the power to actually ban immigration itself. As described in my lead essay, the Founders recognized that power over naturalization is not equivalent to a power to exclude immigrants entirely.
If giving the federal government a power that influences X were the equivalent of giving it total control over X, then the federal power would be effectively unlimited. For example, federal regulations of interstate commerce undeniably influence almost every in-state activity, and indeed almost every aspect of life in the United States more generally. That does not mean that the Commerce Clause gives the federal government a blanket power to regulate or ban any activities that might be influenced by restrictions on interstate trade.
Even as an empirical matter, Professor Eastman is wrong to assume that exclusion from citizenship was a categorical deterrent to migration. It is true that many states in the 1790s did not allow noncitizens to own or inherit land. But many poor Europeans seeking to migrate to the United States had little or no chance of ever owning land in their home countries either. Even as lifelong renters, they stood to earn better wages and enjoy greater freedom in the United States than in Europe. These gains were often large enough to justify the relatively high cost of passage across the Atlantic, and the difficulty of returning home should they decide emigration was a mistake. Moreover, then as today, some states were more eager to attract immigrants than others, and migrants could hope for better treatment by the former.
In other contexts, John Eastman and I have both repeatedly opposed arguments that imply unlimited federal power, as in the Obamacare individual mandate case, where both of us spoke out against the Obama administration’s position and urged it to strike down key parts of the Affordable Care Act that could only be upheld based on such arguments. Unfortunately, Professor Eastman’s approach to the Naturalization Clause has much the same flaw as the Obama administration’s position in NFIB v. Sebelius. Both make a hash of the Founders’ carefully limited enumeration of federal powers.
The Commerce Clause
Professor Eastman’s Commerce Clause theory suffers from much the same shortcoming as his interpretation of the Naturalization Clause: it too would give the federal government virtually unlimited power. Relying on Chief Justice John Marshall’s opinion in Gibbons v. Ogden (1824), Professor Eastman claims that the power to regulate commerce is really a power to regulate “intercourse” more broadly, therefore including international migration. As I noted in my lead essay, the same logic would give Congress the power to ban interstate movement by Americans, using the power to regulate interstate commerce – surely not something permitted under the original understanding of the latter.
Moreover, in context Marshall’s reference to “intercourse” does not encompass all significant interaction between states (or between Americans and foreigners) but rather interstate and international commercial transactions. In a part of his opinion that is unjustly neglected by most modern commentators, Marshall emphasized that the federal power to regulate interstate commerce did not encompass state “[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c..”
As Marshall recognized, such laws “have a remote and considerable influence on commerce,” but still do not fall within the scope of the commerce power. The same goes for laws barring the entry of migrants, which clearly have a major impact on interstate commerce, but do not themselves regulate trade in “articles of commerce.”
It is true that the power to regulate foreign commerce can be used to regulate passenger ships engaged in commercial transactions. But, as discussed in my lead essay, such authority cannot be leveraged into a power to bar entry into the United States without undermining the Constitution’s scheme of enumerated powers.
Professor Eastman suggests that the Migration or Importation Clause, particularly the use of the word “migration” therein, shows that the power to regulate foreign commerce encompassed the power to ban migration by free persons. This argument, too, was addressed in my lead essay. As I explained there, the “migration” referred to does not imply a general power to bar migration by free persons, but only that of those who also qualified as “articles of commerce” in the understanding of the time: which includes indentured servants – an important category of free migrants during the colonial era and the early republic. Professor Eastman also fails to address James Madison and John Jay’s specific denials that the Migration or Importation Clause implies the existence of a general power to restrict migration. In Federalist 42, for example, Madison decried “[a]ttempts [that] have been made to pervert this clause into an objection against the Constitution, by representing it…as calculated to prevent voluntary and beneficial emigrations from Europe to America.”
It is also somewhat strange that Professor Eastman contends that the word “persons” is a euphemism for slaves, but not the Migration or Importation Clause, as a whole. The truth is that the entire Clause was drafted in a euphemistic way in order to preclude Congress from having the power to ban importation of slaves (and indentured servants) until 1808, but without explicitly saying so. Both “persons” and “migration or importation” were, to use an anachronistic term, “politically correct” terms for referring to the brutality of the slave trade. As Jay put it: “some of the States [represented at the Constitutional Convention] were not only anxious for a Constitutional provision against the introduction of slaves. They had scruples against admitting the term ‘slaves’ into the instrument. Hence the descriptive phrase ‘migration or importation of persons.’”
Unlike his other two arguments, Professor Eastman’s argument that federal power over immigration derives from an inherent power of sovereignty does not have the defect of giving the federal government nearly unlimited power to regulate anything it wants – especially the power to forbid interstate migration. But, unfortunately, he fails to address my criticisms of that theory in my lead essay.
Among other things, the assumption that the federal government has any power that might have been considered a standard attribute of sovereignty in the 18th century would render superfluous many of the powers specifically enumerated in the Constitution, such as the power to declare war, raise armies, and imposes taxes. If these powers were enumerated merely to specify which branch of government has them, one would expect that such specification would also be necessary for a power so significant as authority over immigration.
If we can infer the existence of a power so important as authority to ban immigration, despite the absence of any enumerated grant of authority, one wonders what other previously unknown federal powers can be created by the same means. For example, eighteenth century European rulers were generally understood to have the power to control education in order to indoctrinate the population in their preferred religion and ideology. They also were considered to have the power to regulate the family and upbringing of children. This suggests that the federal government has a general power over education and family law, an inference that probably will not sit well with Professor Eastman and other conservatives.
Professor Eastman’s argument here also conflates the restrictions on migration with restrictions on political participation. While a distinct “people” of some kind may be necessary to institute and maintain a government that “protect[s] and secure the blessings of liberty,” this is amply provided for by the authority to set criteria for citizenship and participation in government. People can have a natural right to freedom of movement without also having a natural right to citizenship or voting. Both during the Founding era and today, many people live in the United States without being citizens, and even many who are citizens do not have the right to vote or hold political office. Consider, for example, the exclusion of children and (in many states) convicted felons and some of the mentally ill, from the franchise.
As Professor Eastman rightly points out, some in the early republic were indeed concerned about the potentially harmful political influence of immigrants from “despotic” nations. But the remedy for that problem was not migration restrictions, but restrictions on eligibility for citizenship and the franchise. Moreover, it is worth noting that this concern was largely misplaced. In reality, nearly all the immigrants who played a key role in developing America came from “despotic” nations. This is certainly true of 18th and 19th century immigrants from continental European nations, nearly all of which were despotisms at the time. It was even true of immigrants from Britain, which was a narrow oligarchy at the time, one in which only a small fraction of the adult male population could vote in elections for the House of Commons prior to 1832. If immigration from despotic societies were a genuine menace to American freedom, the latter would have been lost long ago.
A full discussion of this important question of political theory is probably beyond the scope of this symposium. Here I emphasize only that the existence of a distinct political society does not automatically require restrictions on migration, as opposed to citizenship and political participation, and that the Constitution effectively distinguishes between the two by giving Congress a general power over naturalization, but not migration.
 Gibbons v. Ogden 22 U.S. (9 Wheat.), 1 203 (1824).
 Id. at 204.
 The Founders Constitution vol. 3, 298 (Philip Kurland & Ralph Lerner eds. Chicago: University of Chicago Press, 1987) (John Jay to Elias Boudinot, Nov. 17,1819).
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