Over at Open Borders, Ilya Somin argues that the original meaning of the Constitution restricts Congress’s power to limit immigration. I am broadly sympathetic with Ilya’s argument, but I believe that the Constitution’s original meaning does not support libertarian type conclusions as much Ilya seems to suggest. It is my experience that the Constitution’s original meaning usually cuts in a number of directions and balances competing considerations. Let me address three issues.
Conservatives are disappointed and are searching for reasons for the disappointing electoral outcome. In whom or what are they disappointed? A tempting approach is to adopt the inevitableness of changing demographics framework of the left. The left regularly focus on the story of the marginalized—women, minorities, the young and the poor—gaining ascendancy or being victimized. And certainly these four groups were active in this election and were important in delivering the presidency to Obama and perhaps the Senate to the Democrats. It would appear that it is the old white guys who held power previously that are now the victims! But that is delicious revenge for the left. Because it is all about power; you old white guys have had your turn. Now it is our turn.
But there is nothing destiny deciding or inevitable about the impact of these four categories.
Tom Palmer has responded to several criticisms I made of his contributions to a recent anthology that he has edited on the welfare state. Despite what Palmer has written in defence of what I criticised, I stand by my original criticisms and want in this rejoinder to explain why.
My criticisms of Palmer occur in an otherwise favorable review of his anthology.
Below I consider each criticism I levelled in turn, summarizing Palmer’s response to it, and then explaining why I remain unmoved by his response.
It’s always nice to read a review of one’s work and it’s usually a good idea to steel oneself for the criticisms that any work ought to invite. Everything I’ve ever written or edited could have been better. Criticism is a good thing. And so are responses. So here goes.
I was a bit puzzled by David Conway’s review of my modest book After the Welfare State, because he seems to have read different essays from those I wrote. He claims that I have discredited classical liberalism by making several statements that I am rather confident he has misunderstood and thus mischaracterized.
First, one man’s “hyperbole” is another man’s urgency. The crisis of unfunded liabilities is a rather serious matter. The Greek situation, which brought to parliament both communist and fascist parties, not to mention rioters to the streets, should wake us all up. At least, so I would think. But even if we set aside the situation in Greece and focus on the US or Northern Europe, the fiscal imbalances (i.e., the present value of the unfunded liabilities of the state, which represents the difference between anticipated taxes and anticipated expenditures under current law), amount to a whopping 500% or more of GDP in a number of wealthy countries, such as the Netherlands and the US, and up to 1,550% in Poland.
‘Young people today are being robbed…[o]f their rights… freedom… dignity… [and] futures…[by] the world-straddling engine of theft, degradation, manipulation, and social control we call the welfare state.’
So Tom Palmer begins the editorial introduction to his anthology, After the Welfare State: Politicians Stole Your Future… You Can Get It Back…, on the welfare state and its alternatives. Along with this introduction, Palmer contributes three of the volume’s nine contributions.
As is apparent from his opening statement, Palmer has a very low opinion of the welfare state. He considers it responsible for the economic and financial turmoil in which much of the world currently finds itself. In the next sentence to the one just quoted, he continues:
‘The welfare state is responsible for two current crises: the financial crisis that has slowed down or even reversed growth and stalled economies around the world, and the debt crisis that is gripping Europe, the United States, and other countries.’
A main theme of the anthology is that the current welfare spending by western liberal democracies is no longer sustainable, especially that on health care and pensions.
I have not a chance to fully digest the Supreme Court’s new decision in Arizona v. US, which held that three of the four challenged Arizona provisions were preempted by federal law. But I do have some initial reactions, which I will present in two posts. 1. The line up of the justices seems significant. The three conservatives dissented, but Chief Justice Roberts joined the majority. Had the Chief Justice voted with his ordinary political allies, that would have left the Court tied at 4-4 (because Justice Kagan was recused.) One might speculate – and I should emphasize the italicized term…
Mike Ramsey recently had a post discussing Congress power to regulate immigration under the original meaning of the Constitution. I largely agree with Mike, but would like to develop the argument a bit more. I should note that my argument here is not based on extensive research. Instead, it is my current sense of the original meaning and what I believe that a more exhaustive review would establish.
The original meaning of the Constitution does not give Congress the power to regulate immigration as such. Let’s repeat this: there is no specific power over immigration. So the Supreme Court appears to have badly misinterpreted this issue by claiming that Congress has the power to regulate immigration based on its inherent powers. See The Chinese Exclusion Case (1889)
If the Constitution does not grant a specific power to Congress to regulate immigration, then does that mean Congress has no power over immigration? Could the Framers really have intended to preclude Congress from exercising such power?
Here I think the answer is complicated, but the short answer is that the Constitution does not allocate the power over immigrants to one entity, but instead to a variety of entities, including the Congress, the President, and the states. Congress has the power to regulate commerce with foreign nations and that probably allows it to prevent immigrants from entering the United States through commercially regulable entities, such as ships and international highways. Thus, this explains, if nothing else does, the Constitution’s prohibition on the migration or importation of persons.
But this certainly does not cover all immigration. A person walking over the border through the country-side would likely not involve commerce. This action certainly could be restricted by the states. But what if a state does not want to restrict the immigrants? Could the Constitution really leave this to the states? And I think the answer is, yes! At the time of the Framing, the country generally embraced new immigrants, since it had plenty of room and needed labor. It was not focused on preventing immigrants from entering. (I also make this point in this article.)
John Baker, Jr. argues that attempts to restructure immigration policy must focus on the economic incentives of both businesses and foreign workers if the rule of law is to be upheld.
Speaking on immigration to law school audiences and defending the nation’s right – indeed, obligation – to distinguish between citizens and non-citizens is quite a challenge. It helps when I begin by mentioning my representation of some “unauthorized aliens” (the term used in immigration law), my recruiting of foreign students, and my promotion to foreign investors of the EB-5 program for a “green card” and eventual citizenship in return for large investments that generate new jobs for American workers. At that point, it seems those who have come determined to confront me are now willing at least to listen. Apparently, they conclude that “Maybe, he doesn’t actually hate foreigners.”
Immigration is the one social issue which actually falls within the authority of the federal government due to a sovereign’s international right to control its borders. It is also the one social issue over which the deadlock in Washington currently appears to be unbreakable. Compare the abortion issue on which, despite deep divisiveness, the Congress passed, the president signed, and the Supreme Court upheld the Partial-Birth Abortion bill. Emotions on both sides of this most controversial issue were as strong as—if not stronger than—usual, but the rational argument for the legislation tipped the balance. With immigration, the debate in Washington lacks rational argument because it is dominated by the extremes of those for open borders versus those who say they oppose illegal immigration but who actually also oppose legal immigration.
Congress last enacted broad immigration legislation in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act. This was supposed to be a “get tough” law that would deter illegal migration to the United States. Instead, illegal immigration has only escalated since then, to at least 11 million according to the Census Bureau. Alarmed by the uncontrolled increase in illegal immigration, much of the public wants even tougher measures. What almost nobody mentions is that certain “get tough” provisions in the 1996 law had the opposite effect of what was intended. They actually encouraged increased illegal immigration. Rather than going back and forth across the border, as they previously did with ease, illegal workers chose to move their entire families to the US rather than incur the repeated costs of paying coyotes to get them across a tightened border.