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Bench Memos

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Missing the Obvious



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I think it is not the business of the “Bench Memos” page here at NRO to feature opinions one way or the other on the immigration bill that has been much debated of late (and now seems to be on life support at best in the Senate).  But when the arguments trench on constitutional matters, it’s our business here.  In today’s Christian Science Monitor, Becky Akers and Donald J. Boudreaux take the wide-open approach on immigration and borders.  Their case may be a good one economically (no opinion here on that!), but they try to bolster it with a decidedly peculiar reading of the Constitution.  “[T]he Founding Fathers,” they write, “refused to trust the national government with power over immigrants.”  Akers and Boudreaux continue:

That’s right: The Constitution does not authorize the federal government to control immigration. Nor does it say anything about illegal aliens. We looked for a clause with directions for ranking immigrants on a points system – another feature of the Senate’s reform bill – but we couldn’t find one.

Sorry, but this is just a bad act on Amateur Night at the ConLaw Club.  I could point out that control of who enters the United States is an incident of national sovereignty itself.  And I’d really like to know where Akers and Boudreaux think they can find grounds for the view that human beings as such have “the inalienable right to come and go” to and from the United States.  To go, maybe, but not to come.

Or I could point out that statutory control of immigration is legitimately implied as “necessary and proper” (Art. I, § 8, cl. 18) to effectuating Congress’s power to “establish an uniform Rule of Naturalization” (Art. I, § 8, cl. 4).  If you want to control who becomes a citizen, it seems sensible to control who enters the country in the first place.

But if that is too much of a stretch for Akers and Boudreaux, here’s an argument that ought to appeal to writers so interested in the economic impact of immigration.  Since at least 1849, the Supreme Court has rightly recognized that the passage of persons into the United States–both citizens and aliens–is a species of “Commerce with foreign Nations” (Art. I, § 8, cl. 3) that Congress has the power to regulate.  Surely Akers and Boudreaux would not contradict the proposition that labor is a commodity in international channels of commerce?  That labor is inseparably attached to laborers–i.e. persons?  That inasmuch as Congress can regulate the flow of material goods into the country (for good or ill), it can likewise regulate the flow of persons (ditto)?

Akers and Boudreaux could be absolutely right in all the arguments they make about the economic benefits of wide-open immigration.  But they weaken their case with the unnecessary distraction of a bad reading of the Constitution.



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