Immigration Restrictions & the Constitution [FedSoc 5]
Articles,  Blog

Immigration Restrictions & the Constitution [FedSoc 5]


I’m John Eastman, I’m the Henry Salvatori
professor of law and community service at Chapman University’s Fowler School of Law.
Ilya Somin, a professor at a George Mason University, and I debated the issues about
immigration at the Federalist Society’s Student Symposium.
My position on borders is very simple. There should be open borders, which means as a general
rule, no restrictions on people’s freedom of movement, based simply on where they happened
to be born. My take on this is that every sovereign nation
has the power to decide who it’s going to admit into body of politic, inside it’s borders
and then continuing on to who will make full citizens.
Under modern Supreme Court precedent, Congress has almost unlimited power over immigration
but this is not true under the original meaning of the Constitution. Quite simply there is
no enumerated power in the Constitution which gives Congress the general power over immigration.
It just simply doesn’t exist. Deciding the rule on who are going to become
citizens is given to Congress under the power of naturalization. And then deciding the rule
on who will be allowed to enter into the country to begin that step towards naturalization,
I think is necessarily a subsidiary power given to Congress, although it’s implied rather
than explicit. But setting the rule is a legislative act, not an executive act, in the way that
deciding where to send out troops is, and so I think there’s very good reason to think
that Congress is the one that as that plenary of powers. The courts for more than a century
have recognized. The founders, just like we, perfectly well
understood that people could live on U. S. territory without being citizens. Indeed even
the very first naturalization act stated that people could come into the country but only
after some period of years would they be eligible to become citizens. So Congress does have
almost unlimited power over deciding which foreigners can become citizens. That is not
the same thing as the power to restrict migration. We gave that policy, that judgment, that policy
making authority to Congress because we knew there were a lot of variables: How many people
from which parts of the world? How many people can you bring in from a despotic regime without
undermining our own Republican institutions? Those are inherent balancing policy questions,
and we gave them to the people who are most directly accountable to the sovereign authority
in this country and that’s our elected representatives in Congress.
If we allow freedom of movement that can massively improve the lives of millions of immigrants,
and also by the way of large numbers of Americans who could then freely make transactions with
these people. Economists estimate that if there were freedom of movement throughout
the entire world that would close to double world GDP, and even more importantly it would
be an enormous increase in freedom particularly for people who are fleeing poverty and oppression.
It would prevent us from, for example, prohibiting criminals and paupers, the insane, people
with communicable diseases from coming to this country and everybody at the founding
generation thought it was an easy question could they be barred from entry.
I say we do so in exactly the same way that we prevent crime and terrorism by native born
Americans: If we have evidence against particular people that they might be planning a violent
crime or a terrorist attack, then by all means we can go after them and it would actually
be easier to do this if we had open borders because we would free up all the resources
that are currently spent in trying to apprehend people whose only crime is that they want
to come into the U. S. and peacefully get jobs and improve their lives.
An open borders policy essentially refuses to recognize that even though all human beings
have inalienable rights, we come together as distinct peoples and distinct sovereigns
in order to create government that we think is best to protecting those rights. And who
we decide in this country as part of that body politic is part of the very essence of
what it means to be sovereign. Open borders policy would ultimately destroy any notion
of sovereignty.

4 Comments

  • margie hernandez

    Vote Trump. prosecute the people who hire illegal aliens 7-9000$a head And those who have more than 3 adults 3 children renting small homes

  • Intercessor WRATH

    As long as you have something good to offer our country. You should be aloud entry. No matter where you are from. Knowledge is everything!! God bless

  • Thordan

    Just need a good screening sysyem so bad people dont come in.Nothing illegal about stopping criminals. would you want a criminal living in your house?????? if you let them into the US they very well could end up in your house all your neighbors house

Leave a Reply

Your email address will not be published. Required fields are marked *