Yes, Congress Can Regulate Immigration, President Must Enforce

States' Rights? Or Insurrection?

With immigration agents at odds with the Minnesota government and significant pushback against deportation efforts in other states, Democrats have asserted that they have the right not only to allow illegal immigrants into their states, but that these immigrants are a protected class with the full rights and privileges of American citizens.

But they go even further than this. They also assert that the federal government has no right to enter their states or cities to enforce its immigration laws, and in some cases instruct their people to obstruct their efforts.

But do states have the constitutional authority to determine their own immigration policy?

Or does that authority lie with the federal government?

The answer to these questions––I promise you––is not at all obvious. Seriously. It's really, really not obvious.

I expect many of you to say, "Duh. Of course the feds can regulate immigration." And not to leave you hanging on the edge of your seat too long––although I know you love lengthy treatments of constitutional law and American history––know that, yes, you are correct. The feds can absolutely regulate immigration.

But wouldn't you like to know how? And where in the constitution this power comes from? And also be able to get some points in your next social media debate? Or be able to flex your knowledge at the next office cocktail party?

Before we begin, as a quick exercise, go to the constitution and find the clause that delegates that power to the congress. I will give you a hint: the power is in Article 1, Section 8.

Good Guesses

Assuming that you took that little quiz without consulting Wikipedia, Google Gemini, ChatGPT or some other unapproved "learning aid", you probably aren't sure, or said something like Clause 4:

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Establishing "an uniform Rule of Naturalization" is a very good guess, as Naturalization often has much to do with immigration. But naturalization is about becoming a citizen. As we know, the United States saw millions of immigrants come to her in her first few years. In light of that fact, in 1790 the congress passed a law to fulfill its obligation to establish rules of naturalization, so we might expect them to say something about immigration.

When we look at America's first so-called "immigration" law, An Act to establish an uniform Rule of Naturalization, we see that it deals explicitly with the process of naturalization. But the act says nothing about who may come to the United States, only which of them are eligible for citizenship.

Another good guess is Clause 15:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Especially given the Trump administration's rhetoric describing the millions of illegal immigrants who've entered this country over the last 5 years as an "invasion", the constitution's framers would certainly agree that present circumstances permit the federal government to regulate immigration given that foreign countries seem to be encouraging emigration or otherwise doing little to stop illegal entry into the U.S.

But they would not say that this clause permits the federal government to regulate immigration generally; i.e., in ordinary circumstances where foreign government's are doing their due diligence, or when there are modest levels of illegal entry. Additionally, the 18th century meaning of the word "Invasion" has rather narrow limits that seem to exclude immigration. It refers to formal military invasions, but also to any acts which invade upon people's rights. Like an invasion of privacy, for example. 

As Madison explained in Federalist No. 43:

The latitude of the expression here used, seems to secure each state not only against foreign hostility, but against ambitious or vindictive enterprizes [sic] of its more powerful neighbours.

But, while an Invasion could consist in unwanted immigrants from foreign lands, it does not necessarily consist in this, and "foreign hostility" may only refer to actual military invasion. But also, Invasion could be carried out by your neighbor, your sheriff, or the next town over. At bottom, Invasion refers to the seizing of property and the denial of rights. What we still need is a general power to regulate immigration, not merely the power of congress to call upon state militias in times of Insurrection or Invasion.

Finally, some of you may have been tempted to look at Section 9, Clause 1. In which case, ye of little faith have rejected my premise. Tisk, tisk. 

Section 9, Clause 1 is a good guess too, though. And it's worth mentioning...

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This clause gets closest to establishing the power to regulate immigration; the words "Migration" and "Importation" being critical signs of that. In full, what the Clause explains is that the Migration or Importation of people may not be prohibited by congress until the year 1808. This implies that both may be prohibited by congress upon that date. 

This clause, however, is redundant (as I will show in the next section) with respect to immigration policy because it doesn't actually delegate authority, and is actually meant to encourage immigration by placing a moratorium on congress's power to restrict it. 

The question still stands: where is that power enumerated? Just as important, its second purpose is to place a moratorium on congress's power to restrict the slave trade.

And unlike the clause which actually gives congress the power to regulate immigration generally, we actually have notes from the ratification debates that explain the meaning of Section 9, Clause 1:

So Section 9, Clause 1 implies that congress has the power to regulate the immigration of "free persons", as James Iredell has revealed.

But where is that power expressly delegated?

The Define and Punish Clause

Well, hopefully the J.D.s got this one right!

Congress's power to regulate immigration comes from the Define and Punish Clause, Section 8, Clause 10:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

In my last article Nullify the Car Kill Switch, I said that the Constitution was not a complicated document. That was a little bit of hyperbole on my part––but only a little. With a bit of curiosity and some deliberate study, virtually every question you have can be answered provided you find the right teachers and have the proper context. My point is that the Constitution is accessible to nearly everyone. It was written at a time when the American layperson was highly interested in legal and judicial matters, and all were well-versed in the English law tradition. It was made for the common man.

But, so as not to risk dismissing the significance of any piece or part of this Clause, let's parse it.

The first phrase is an infinitive phrase: "To define and punish". 

The objects being acted upon––the things to be defined and punished––are Piracies committed on the high Seas, Felonies committed on the high Seas, and Offences against the Law of Nations.

The first two objects of that Clause, Piracies and Felonies, do not grant authority to congress to regulate immigration. We could imagine that many people immigrate to the U.S. by way of the high Seas, but illegal entry to the United States does not occur on the high seas. The high Seas are what we would today consider international waters where no sovereign has jurisdiction, so a state's territorial integrity cannot be comprised by actions which occur beyond its territory. Sovereigns do, however, have jurisdiction over their citizens, regardless of where they are. So the first two objects would entail congress engaging principally in punishing its own citizens who threaten the peace with other peoples.

The purpose of congress defining and punishing crimes committed in international waters was to maintain good relations with other peoples, lest they be seen as encouraging their citizens to interfere in the affairs of other peoples.

So it is the third object of that Clause, "Offences against the Law of Nations", from which congress derives its authority to regulate immigration.

Again, not obvious!

Hidden and packed away within this term are centuries of tried-and-true laws and norms. All of which the framers were intimately familiar with.

In the 18th century, anglo-Americans capitalized all nouns, just as the German language does. But in this case, the term "Laws of Nations" is also a proper noun. The framers are not referring, here, to the infinite expanse of positive law on the books of every earthly legislature, but rather to a definite thing; to a centuries-long tradition of natural law, international law, norms and rules. What they are referring to are the well-established ways in which states and peoples may interact, and the rights and powers that all states enjoy.

Among this expanse of precedent and history are the rules and norms governing immigration. And although the constitution does not say "Congress shall have the power to regulate immigration," the Laws of Nations captures this power.

But is this then an example of a dreaded implied power? Are we opening Pandora's Box by releasing a whole host of implied powers? Not to be too much of a downer, but the Necessary and Proper Clause has already done that despite its status as a recital, but I digress. In all seriousness, no. It doesn't expose us to implied powers. Since Laws of Nations is a proper noun, it refers to a definite thing. It consists of centuries of codified laws deduced, in the Western tradition, from natural law. And, importantly, even if it did introduce implied powers, the ratification of the 10th amendment just a couple years later makes any reference to "implied" powers obsolete.

It is unfortunate that there is no record (as far as I am aware) of anyone during the ratification debates commenting on the allowances made by this term for posterity sake, but the fact that its inclusion was ostensibly met without objection or curiosity strongly suggests that its meaning was unambiguous. It also suggests that we have forgotten what was once common knowledge among the founding generation, and that our constitutional interpretations are lacking.

As Edmund Burke said, "The individual is foolish, but the species is wise."

The Laws of Nations

The Laws of Nations is international law. It is an extension of natural law and natural rights, applied to states and peoples (Nation means peoples, ethnicities, states. It does not mean only political states as it does in the 21st century meaning of the word).

However, unlike today, the founders' international law did not consist merely in positive law like we see in the United Nations. Yes, the Laws of Nations includes treaties and agreements between states, but the American founders were almost unanimous in their belief in natural law––eternal, immutable laws more legitimate than any positive pronouncements made by men.

As Rob Natelson explains:

The law of nations was based on natural law, custom, and international agreements. However, the rules were not always clearly defined, and they were not self-executing. For this reason, legislatures adopted implementing statutes...The Define and Punish Clause granted Congress authority to adopt implementing measures.

And these measures were instituted to maintain peace between nations, as is the purpose of all international law.

But since the Laws of Nations isn't easily defined, we have to know which Laws the framers were referring to, and whether immigration restriction was a way to prevent "Offences" against it. As it happens, we have the exact list of books recommended by the 1783 committee of the Confederation Congress which indicate exactly what the framers meant by the Laws of Nations.

The three men appointed to this committee were Hugh Williamson, Thomas Mifflin, and the great James Madison. Among the many books they recommended on the subject of Law of Nature and Nations were:

• Samuel Pufendorf's Law of Nature and Nations;
• Emer Vattel's Law of Nature and Nations; and
• William Blackstone's Commentaries

These three scholars––as well as Grotius––were held in very high regard by the framers, but none more than Vattel and Blackstone. Vattel's work is especially important as he was writing almost contemporaneously with the framing of the Constitution.

A survey of what these men say with regard to immigration and the Laws of Nations is very straightforward: states have the right to restrict both immigration and emigration, and ought to restrict these if the interests of its citizens, or the security of the state, are affected.

Samuel Pufendorf

Let's begin with Pufendorf, who first draws an analogy between private persons receiving visitors and states receiving visitors; and then expands on permanent immigration specifically.

These quotes reveal a great deal of wisdom. In the first, just as we would cast out ungrateful and disrespectful guests, states should do the same lest foreigners disrupt the harmony of the society.

As for the second quote, Pufendorf strongly condemns unvetted immigration. Where someone comes from (a proxy for their cultural disposition and compatibility with the society), and their intentions toward the society are factors which cannot be ignored.

These insights stand in stark contrast to what many on the left now advocate: indiscriminate entry regardless of beliefs, potential contributions, or gratitude. All for the sake of being "welcoming", "empathetic",  or "caring."

These sorts of feelings toward immigration are certainly an outgrowth of people's hospitable natures. But hospitality entails reciprocal duties. It is not good to be hospitable when guests are not hospitable in return.

Thus, Pufendorf concludes that even hospitality has its limits:

So while states might take pity on exiles and invite them to live permanently within society, this is done at the discretion of the state, and only in cases where exile is not because of their "own Demerit [or] Crime." Even in such cases of blameless exile, states are not required to accept them in great "Multitudes."

This stands in direct contrast to the aims of the Left, who largely desire to accept any and all exiles––Somalis and Latinos in particular.

Emer Vattel

Next on the list for consideration is the work of Emer Vattel. 

Vattel's book on the Laws of Nations is especially important in understanding the founders' understanding since his book was published most recently (English translation, 1760) at the time the Constitution was drafted.

Vattel, like Pufendorf, was quite explicit about states' rights to regulate immigration and emigration according to the Law of Nations:

The Right of Domain being the sovereign's equivalent to a private person's right to their property, states are permitted to exclude visitors and punish trespassers in any case and by any means whatsoever.

But Vattel also says something about those sovereigns who let their subjects enter other states without permission:

These quotes demonstrate that weak sovereigns, and sovereigns which acquiesce in or promote their subjects to violate the laws and rights of other countries, are guilty of the crimes committed by their subjects. This gives teeth to Article 1, Section 8, Clause 15, according to which mass illegal migration may constitute Invasion and warrant the congress to "call forth the militia."

Given Vattel's example, there are now definite circumstances by which congress may choose to "call forth the militia to execute the laws of the union." In other words, the national guard (state militias) may be called on and deployed within states and along the border to execute immigration laws. This "provision" is to be prescribed by the laws of congress.

William Blackstone

Last on our list for consideration is Blackstone's Commentaries.

By far the most widely-read and respected legal scholar of England and America, he received more citations from the founding generation than anyone else––perhaps with the exception of John Locke.

Here is what he says about the right to regulate immigration according to the Law of Nations:

So according to the founders' three foremost authorities on law and the Law of Nations, unwelcome visitors may be excluded by states at the sovereign's discretion.

Entry into a state without express permission was a violation of the Law of Nations and therefore an offense against the sovereignty of a state, and punishable by law.

Sovereigns who did not uphold the Law of Nations, or who facilitated their citizens to transgress upon other peoples, were guilty of violating the Law.

Only in extraordinary circumstances were unwanted visitors allowed to remain, but the length of their stay was always at the sovereign's discretion, and could be refused outright. It was simply customary––an act of good will and decency––to help those who had suffered misfortune. But it was never a requirement under the law, and any beneficent act had always to be weighed against the impact had on a sovereign's subjects.

The President Must Enforce

Now that we have established congress's constitutional authority to regulate immigration (and emigration), we can analyze the role of the executive branch in enforcing those laws.

As President, the executive––and his subordinates––are required by law to execute the laws of congress. As Article 2, Section 3 says:

he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States;

Of course, he is only required to enforce laws. Non-binding resolutions do not have the effect of law, and neither do unconstitutional Acts of congress. On that point of unconstitutional Acts, upon taking office the President is required to take an oath of office, stating:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

So the President is constitutionally bound to preserve, protect and defend the Constitution, and to faithfully execute the laws of congress.

Examples of this "faithful" execution of law can been seen in the form of Border Patrol, ICE, and the deployment of National Guard forces. The first two are officers of the executive and may be mobilized at the President's discretion. National Guard (Militia) forces require congress's consent via "provision." This consent is given in the form of laws providing for the circumstances under which the militia may be called into service of the United States (with the President as Commander in Chief).

The Faithful Execution clause was designed to give the President a great deal of latitude in domestic instances of Insurrection or Invasion. In other words, cases of widespread lawlessness. The latitude provided domestically, however, does not translate to cases of foreign military engagements. That power––the power to declare War––remains solely with congress and cannot be entered into automatically by rule or law, nor delegated, as it is a core power of congress. The only exception to this is if a state is "in such imminent danger as will not admit of delay."

This has important implications for states like Minnesota who have often misunderstood (or misrepresented) what they are actually allowed to do as a member of the Union.

Do Not Obstruct

U.S. citizens, states, and agents of states may not obstruct the enforcement of constitutionally-valid laws. But that does not mean they have to enforce them.

I believe the first few sections of this essay have done a good job of proving that immigration laws are valid laws. But with the exception of the conditions placed on state militias being called into service of the United States, states do not have to cooperate or facilitate their enforcement. That is the duty of the federal executive.

We might like or want states to cooperate with the federal government's enforcement of immigration laws, but that is not a constitutional duty of states. States are exercising––wisely or not––their constitutional right of non-cooperation. However, they are, in many cases, taking a step too far by actively obstructing their enforcement.

In those cases, that is an act of Insurrection and the President has the right to call on state militias to restore order, and more! Not only have citizens subjected themselves to potential prosecution, but their legislators and governors who have encouraged obstruction (active interference with federal agents' physical ability to perform their duties) have exposed themselves as well. They are all liable to be on the receiving end of a criminal indictment for one very simple reason:

You do not have the right to obstruct the enforcement of constitutionally-valid laws.

This is in stark contrast to the right and duty to nullify un-constitutional laws, in which obstruction is a civic duty.

If you have not read my article Nullify the Car Kill Switch, I quote both Jefferson and Madison in their Kentucky and Virginia Resolutions when they say:

"In case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties there-to have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

Notice here the use of the phrase "maintaining within their respective limits."

As federalism teaches us, there are federal rights and states' rights; federal spheres, and states' spheres. It is possible for the federal government to go beyond its proper sphere (as it has often done) just as it is possible for states. In these instances of obstruction, states and citizens have transgressed.

That is not to say that federal agents have not transgressed as well––not attaining arrest warrants being a prime example, but for now we will keep our scope to constitutional rights.

The objection to immigration policy and its subsequent obstruction is not and cannot be a matter of constitutional principle. It is, at bottom, a disagreement over policy, and not a legitimate case for obstruction; i.e. nullification or interposition.

For those who disagree with the policy, you have two options: gain a critical mass of support where you can change federal law, or (maybe better yet) leave the Union.

In one of the very few instances in which he actually has a good idea, Jesse Ventura has actually recommended this: "Join Canada!" he says.

Time will tell if the people of Minnesota actually try to pursue this, but it would solve the problem of enforcement almost immediately. The federal government would have to immediately cease all discretionary (but not mandatory) spending to Minnesota, could concentrate its efforts in states with really significant levels of illegal immigrants (Florida, Texas, California), and Minnesota could accept whomever it wants.

There are also some downsides to this, but lets end on a positive note.

Bottom Line

• Congress has the power to restrict immigration and emigration to and from the United States by virtue of the Define and Punish Clause, Article 1, Section 8, Clause 10.
• The last object of that Clause, "Offences against the Law of Nations," is defined by the works of Pufendorf, Vattel and Blackstone, among others.
• These authors conclude that regulation of migration is the right of a state by virtue of natural law, and that violations of the natural law are punishable by sovereigns.
• The power to regulate migration does not come from Clause 4 or Clause 15, nor is it an implied power. 
• In the enforcement of these constitutionally-valid laws, the President is permitted to instruct his agents to enter states to carry out the Executive's constitutional duties, and even to command state militias.
• States are prohibited from interfering with these constitutionally-valid laws, but are not required to aid in their enforcement.