Immigration and the Constitution: Does Obama Have the Law of the Land on His Side?

As Robby Soave previously
noted, libertarian George Mason University law professor (and
sometime Reason contributor) Ilya
Somin has written
a constitutional defense of President Barack Obama’s unilateral
immigration action. I wanted to highlight one particular prong of
Somin’s argument. He writes:

the immigration laws covered by the president’s executive order
may go against the original meaning of the Constitution. Under the
original understanding, Congress did not have a general power to
restrict immigration (though it did have power over
naturalization). That may not matter to adherents of “living
constitution” theories of legal interpretation. It also should not
matter to those who believe that the Constitution generally means
whatever Supreme Court precedent says it means. Immigration
restrictions have been deemed permissible under longstanding
precedent dating back to 1889.

But it should matter to those who consider themselves
constitutional originalists, which includes many of the
conservatives who have been most vehement in opposing Obama’s
actions today. If you believe that the Constitution should be
interpreted in accordance with its original meaning, and that
nonoriginalist Supreme Court decisions should be overruled or at
least viewed with suspicion, then you should welcome the use of
presidential discretion to cut back on enforcement of laws that
themselves go against the original meaning.

I am no fan of the Obama administration’s approach to
constitutional interpretation. In too many instances, the president
really has acted illegally and undermined the rule of law – most
notably by starting wars without congressional authorization. But
today’s decision isn’t one of them.

This is a compelling argument. America’s current immigration
regime does raise significant constitutional questions and should
therefore be viewed with suspicion by constitutional originalists.
Unfortunately, the Obama administration is not making that
argument. In fact, the White House has done its best to undermine
Somin’s position and hinder its future success.

How? By repeatedly embracing a sweeping theory of congressional
power that would certainly cover the federal immigration policies
at issue here. For example, in the 2012 litigation over the Patient
Protection and Affordable Care Act, the Obama administration fully
embraced the Supreme Court’s notorious 2005 decision in Gonzales
v. Raich, which said that California residents using
medical marijuana legally under state law are nonetheless still
subject to criminal sanction under the federal Controlled
Substances Act. Why? Because the Commerce Clause allows Congress to
“regulate activities that substantially affect” the nation’s
commerce. And according to Raich, such activities include
the purely local act of cultivating and consuming a plant entirely
within the confines of a single state.

Well, if that sort of activity now falls within the reach of
Congress via the Commerce Clause—which covers both interstate
commerce and “Commerce with foreign Nations”—it’s hard to see how
today’s immigration controls would not also fall within the White
House’s broad conception of congressional power. Foreign migrants
arriving in the United States have at least as much of a
substantial commercial impact as do medical marijuana patients
whose local treatment is sanctioned by state law. The original
Constitution may not have granted Congress the authority to impede
immigration as it does today, but that document also did not grant
Congress the power to regulate purely local economic activity as it
does today. The modern Commerce Clause interpretation endorsed by
the White House, however, would seem to cover both.

To be sure, Professor Somin has identified a strong originalist
argument for use against today’s federal immigration system. Too
bad the Obama administration lacks the constitutional understanding
to make that argument stick.