SCOTUS denies Congress any general power to restrict immigration

What if the Supreme Court had held that the Constitution did not give Congress any general power to restrict immigration (and that it is not an "inherent power" either)? For a defense of this position by an open-borders libertarian, see http://openborders.info/…/immigration-and-the-us-constitut…/ Most likely, of course, if the Court had so held at the time of the Chinese Exclusion cases of the late nineteenth century, the Constitution would have been amended to provide for such a power, but Somin argues that "the Constitution is extremely hard to amend, and it is far from clear that the supporters of the Exclusion Act had the necessary two-thirds majority in both houses of Congress, plus winning the support of three quarters of state legislatures."

Of course any Court taking such a narrow view of Congress' constitutional power in this respect is likely to take a narrow view of it in other respects as well (e.g., if the Commerce Clause doesn't cover immigration, it presumably doesn't cover a great many other things it has been held to cover) but for now let's ignore that, and just focus on immigration.
 
Who does it say has that power then?

The 9th and 10th amendments delineate that any powers not delegated to congress nor explicitly denied to the states are reserved to the states. However, Article 4 prevents the states from controlling the movement of people across their borders, so immigration policy would likely be up to the states, however once immigrants enter the country, they could functionally move anywhere they want, so we would likely see immigrants funneling into a few states with looser laws, and subsequently dispersing to more popular immigrant destinations (provided those destinations are not already the states with looser immigration laws)
 
I don't see this decision standing without a very rapid constitutional amendment giving Congress the power to enact immigration legislation. It would depend on the time and place, but open borders are almost never popular, and particularly after birthright citizenship becomes ingrained into the legal apparatus, people aren't going to like the idea of everyone rushing into the US to get citizenship without any kind of stoppage.
 
I don't see this decision standing without a very rapid constitutional amendment giving Congress the power to enact immigration legislation. It would depend on the time and place, but open borders are almost never popular, and particularly after birthright citizenship becomes ingrained into the legal apparatus, people aren't going to like the idea of everyone rushing into the US to get citizenship without any kind of stoppage.

Open borders were the unremarkable norm until the 20th century. A few countries (the US and AIUI Australia) restricted immigration by unwanted Asians. But in general nobody worried about it. Even the "anti-immigrant" "Know-Nothing" Party in the US did not advocate physically restricting immigration; they only proposed to restrict naturalization of immigrants.

It was not until immigration reached truly epochal levels circa 1900 that anyone proposed general restrictions on immigration. And that wave of immigration was possible only after the development of steamships.
 
Open borders were the unremarkable norm until the 20th century. A few countries (the US and AIUI Australia) restricted immigration by unwanted Asians. But in general nobody worried about it. Even the "anti-immigrant" "Know-Nothing" Party in the US did not advocate physically restricting immigration; they only proposed to restrict naturalization of immigrants.

It was not until immigration reached truly epochal levels circa 1900 that anyone proposed general restrictions on immigration. And that wave of immigration was possible only after the development of steamships.
I suppose that's the thing though, even if the borders were not closed in some legal way, they were effectively closed by the distance from sources of immigration. Supposing that this court ruling came down in the early 18th century, the amendment to give Congress immigration restriction power would come in the later 19th century then.
 
I suppose that's the thing though, even if the borders were not closed in some legal way, they were effectively closed by the distance from sources of immigration. Supposing that this court ruling came down in the early 18th century, the amendment to give Congress immigration restriction power would come in the later 19th century then.

To be honest, I think it would happen when there was significant non-Western immigration. The Chinese Exclusion Act was passed in 1882.

Yes, there was hostility to for instance Irish immigration, but by the time it was significant, there was already a critical number of Irish settled in the US to oppose such restrictions.
 

Md139115

Banned
The 9th and 10th amendments delineate that any powers not delegated to congress nor explicitly denied to the states are reserved to the states. However, Article 4 prevents the states from controlling the movement of people across their borders, so immigration policy would likely be up to the states, however once immigrants enter the country, they could functionally move anywhere they want, so we would likely see immigrants funneling into a few states with looser laws, and subsequently dispersing to more popular immigrant destinations (provided those destinations are not already the states with looser immigration laws)

In such a situation, Congress could plausibly argue that the Necessary and Proper clause needs to apply since the laws of some states are being undermined by the laws of others, and any attempt by the states to rectify by imposing checkpoints and barriers would violate even a strict reading of the Commerce Clause.
 

raharris1973

Gone Fishin'
Donor
Monthly Donor
In my view that no constitutional amendment is coming at least until the 20th century and probably no earlier than the 1920s.

The Chinese issue alone would not rise to the level to mobilize an amendment and have it pass. Western states would try to deal with the Chinese issue at their level – California, Oregon and Washington state first, then the mountain west perhaps. Has potential knock-ons for trying to police the California border with Mexico and Canada too.

Then other jurisdictions like the mountain west take part. Some states perhaps never regulate Chinese entry.
 
I suspect there would be a constitutional amendment then to change this. The states would not want to enforce their own border policies.
 
Open borders were the unremarkable norm until the 20th century. A few countries (the US and AIUI Australia) restricted immigration by unwanted Asians.

Not quite true. Starting from the late 1780's there were rather strict immigration laws in the Russian Empire: not only entry for foreigners was difficult but they were also put under the special surveillance. Prior to that period (starting from at least XVII century) immigration (which was mostly from the West) also was tightly controlled even when the foreigners had been explicitly invited (like during the reign of Catherine II). These restrictions had been relaxed only in the 1860's. Of course, it was close to impossible to control the "flow" across the Russian-Chinese border but, the existing passport rules for the Russian citizens had been creating some "natural restrictions" on their travel and settlement. The Russian Empire Census of 1897 showed a total of 57,459 Chinese speakers (47,431 male and 10,028 female), of whom 42,823 (74.5%) lived in the Primorye region (Russian Far East with the administrative center in Vladivostok).
 
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