John C. Eastman
November 18, 2015
he jihadist attacks in Paris this past weekend have raised anew serious concerns about the President’s aggressive policy of settling tens of thousands of Syrian refugees in cities and towns across the United States. More than two dozen Governors have announced their opposition to the refugee resettlement program, but serious questions about whether the States have any power whatsoever to prevent the President’s actions have been raised. The federal government’s power over immigration is “plenary,” we are told, and the States have nothing to say about the matter. Or so the received wisdom goes.
Truth be told, Congress does not have any explicit power over immigration per se. Such a power has been inferred from its power over naturalization, but naturalization—the power to determine who shall be citizens—is different than the power over immigration of non-citizens. There is a negative inference from the non-importation clause in Article I, Section 9 that Congress would eventually have a power to prohibit immigration (“The Migration or Importation of such Personas as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to” 1808), but that Clause does not similarly imply that Congress would also have the power to force States to accept immigration. For a while, the courts recognized that the power over immigration might be a corollary to the power to regulate foreign commerce, but that was not broad enough to cover immigrants who were not engaged in commerce or utilizing the channels of commerce. As a result, the courts eventually located the power to control immigration in the inherent sovereignty of the federal government, but that, too, simply addresses what the federal government may prohibit; it does not necessarily address what the federal government may compel, and it does not recognize that the States, too, are sovereigns.
The Import-Export Clause suggests a different allocation of power between the States and the federal government than the plenary and exclusive power in the federal government that is often assumed. Article I, Section 10 of the Constitution prohibits the States from laying any imposts or duties on imports or exports without the consent of Congress, “except what may be absolutely necessary for executing [their] inspection laws.” The section then provides that “all such Laws shall be subject to the Revision and Controul of the Congress.”
During the Virginia ratification debate, George Mason, an opponent of the Constitution, criticized the language, contending that it prohibited the States from “mak[ing] any inspection-law but what is subject to the controul and revision of Congress,” and would therefore render Virginia’s tobacco inspection laws subject to the superintending control of Congress. But George Nicholas, a proponent of the Constitution, rejected Mason’s reading, noting that the only laws subject to the revision and control of Congress were the laws imposing duties, not the inspection laws more generally. James Madison then noted that Nicholas “has fairly represented” the clause. In other words, the clause did not give Congress any authority to revise or control a State’s inspection laws. Indeed, it seems to recognize the opposite. As Justice Scalia noted in oral argument in the Arizona S.B. 1070 case, Arizona v. United States, this provision of the Constitution “recognizes that there is such a thing as State borders and the States can police their borders.” The Supreme Court, too, has recognized (at least, once recognized), that “before the adoption of the constitution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons,” and that far from stripping the States of this authority, the Constitution actually bolsters it. Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102, 132-133 (1837).
Imagine the following hypothetical. Suppose the President (or the federal government more broadly) were to decide to admit foreigners with life-threatening communicable diseases, and then compel the states to accept them for residency within the state’s borders, seriously threatening the health and safety of the state’s citizens. Would anyone seriously contend that the State’s police power—the power to protect the health, safety, welfare, and morals of its people—would be preempted by the implicit power in the federal government over immigration, and that the sovereign states were powerless to protect their own people from this scourge? In the analogous context of the dormant commerce power, an implied federal restriction on States action that interferes with interstate commerce, the courts have explicitly recognized that the implied restrictions on the states do not prevent a State from acting to prevent commerce in goods that will cause harm in the state. It is hard to imagine that the States retain the power to prevent a diseased apple crop from crossing their borders, but do not retain the power to prevent murderous jihadists from taking up residence within their borders.
So under the original understanding of the Constitution, the States would seem to have ample power to make clear via their own “inspection laws” that they are not going to admit across their own borders potential jihadists who had not been duly inspected and determined not to be jihadists. The question now is whether any of them are manly enough to exercise that power. Recent statements by a score of the nation’s Governor’s suggest that perhaps they are warming to the idea.
This piece was originally published in National Review.