Persuasive Essay .
you may choose a topic relevant to your career or studies
IMMIGRATION: Should the U.S. offer a path to citizenship/legal residency for illegal immigrants?
MINIMUM WAGE: Should the minimum wage be raised from its current $7.25 per hour?
ENVIRONMENT: Should the US support initiatives that restrict carbon emissions (or carbon pollution)?IMMIGRATION, FREEDOM, AND THE
CONSTITUTION
Somin, Ilya.Harvard Journal of Law and Public Policy; Cambridge Vol. 40, Iss. 1, (Winter 2017):
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In recent years, many conservatives have come to favor a highly restrictionist approach
to immigration policy. But that position is in conflict with their own professed commitment to
principles such as free markets, liberty, colorblindness, and enforcing constitutional limits on the
power of the federal government. These values ultimately all support a strong presumption in favor
of free migration. The reason why immigration restrictions have such an enormous effect is pretty
simple. People become much more productive when they move from countries where they have little
or no opportunity to use their talents, to those where they can be more productive. Just crossing
from Mexico to the US makes a person three or four more times more productive than they
otherwise would be, even without improving their skills in any way. And the opportunities to improve
skills are, for most immigrants, far greater in the US than where they initially came from. There is an
enormous amount of wealth that can be created just by cutting back on our immigration restrictions.
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In recent years, many conservatives have come to favor a highly restrictionist approach
to immigration policy. But that position is in conflict with their own professed commitment to
principles such as free markets, liberty, colorblindness, and enforcing constitutional limits on the
power of the federal government. These values ultimately all support a strong presumption in favor
of free migration.
I. IMMIGRATION AND FREEDOM
Let us focus on free markets first. Immigration restrictions are among the the biggest government
interventions in the economy. They prevent millions of people from taking jobs, renting homes, and
pursuing a wide range of opportunities that they could otherwise have. Economists estimate that if
we had free migration throughout the world, we could double world GNP.1 That is not a gaffe or a
mispring; it is a real estimate. Perhaps doubling GNP is overly optimistic. Still, increasing it by, say,
50 percent is a greater effect than virtually any other realistically feasible change in economic
policy.2
The reason why immigration restrictions have such an enormous effect is pretty simple. People
become much more productive when they move from countries where they have little or no
opportunity to use their talents, to those where they can be more productive. Just crossing from
Mexico to the United States makes a person three or four more times more productive than they
otherwise would be, even without improving their skills in any way.3 And the opportunities to improve
skills are, for most immigrants, far greater in the U.S. than where they initially came from. There is
an enormous amount of wealth that can be created just by cutting back on
our immigration restrictions.
But it would be a mistake to say that the issue here is primarily economic. It is also, and even more
fundamentally, about freedom. When people come to the United States from poor and oppressive
societies, they increase their freedom in many ways. Think of refugees fleeing religious or ethnic
persecution, women escaping patriarchal societies, or people fleeing massacres such as those
perpetrated by ISIS. The ancestors of most modern Americans escaped such oppression during the
period when we wisely did not have the kinds of immigration restrictions that we do today. If we had
today’s immigration policies back then, the ancestors of most of the current US population would
never have been allowed to come.
Immigration restrictions undermine the freedom of native-born Americans as well as immigrants.
Because of our immigration laws, millions of native-born Americans cannot hire the workers they
want, associate with the businesses that they choose, nor benefit from the entrepreneurship of
immigrants; on average, they tend to be more entrepreneurial than native-born citizens.4
II.IMMIGRATION AND DISCRIMINATION
Current immigration policy is also inimical to the principle of color-blindness in government. In
December 2014 President Obama’s Department of Homeland Security concluded that it cannot
enforce immigration restrictions unless it continues to engage in massive racial profiling. This is the
one area where the obama administration believes that racial profiling is a good thing.5
Such profiling affects not just immigrants but millions of native-born citizens whose sole crime is that
they happen to be of the same race or ethnicity as many undocumented immigrants.6 If you believe
in ending racial discrimination in government policy, this would be a great place to start. I am aware
of no other area where federal law enforcement openly resorts to racial discrimination on such a
large scale, even under a liberal administration that is, in general, hostile to racial profiling.
Most conservatives and libertarians support the principle of colorblindness in public policy, or at least
a strong presumption in favor of it. We do not believe that the government should discriminate on the
basis of race or ethnicity. Why? Because these are morally irrelevant characteristics. Your race or
ethnicity says nothing about the kinds of rights you should have. It is not a morally relevant
characteristic, and not something you have any control over.
The same is true of the place where you happen to be born. In and of itself, being born on one side
of a line on a map or another is a morally irrelevant characteristic. It says nothing about the kinds of
rights or the amount of freedom that you should have. Ultimately, we support colorblindness
because we do not believe in restricting people’s freedom based on their choice of parents. The
same principle should apply to immigration policy.
III.HOW TO DEAL WITH POSSIBLE DOWNSIDES of Immigration
A presumption in favor of open borders immigration does not mean we can never have any
restrictions on free movement of any kind. we can restrict the movement of terrorists, violent
criminals, people with contagious diseases, and so forth.7 But the key point here is that we can and
sometimes should restrict such movement regardless of whether the person in question is a nativeborn citizen or not, and regardless of where they happened to be born. I am not arguing there should
never be restrictions of any kind, merely that those restrictions should not be based on who you
chose for your parents and on what side of a line on the map you happen to be born.
Immigration like everything else, does have its downsides. Nothing is a free lunch. However, virtually
all the standardobjections are either overblown or addressable by means less draconian than
forcibly consigning people to lives of poverty and oppression in the Third World. Here, I will just
mention one such issue. But similar points apply to others.
Many fear that increasing immigration might lead to increased welfare spending. The social science
research actually suggests that in the long run, this is not true.8 Controlling for other variables,
states with more immigrants do not have higher per capita welfare spending than other states.9 In
Western Europe, nations with more immigrants actually have lower per capita welfare spending than
their counterparts because natives tend to be more opposed welfare spending when they think that
the funds might go to immigrant groups.10
But let’s say you are still concerned about this problem. There is an obvious solution: Simply deny
welfare benefits to this group of immigrants, or limit them to whatever level you consider appropriate.
The 1996 Welfare Reform Actalready does this for many welfare programs.11 That can be extended
if necessary. If conservatives devoted their efforts to such measures rather than to
promoting immigration restrictions, that would be enormously beneficial for both immigrants and
natives. Other common complaints against immigration have similar “keyhole” solutions that are far
preferable to immigration restrictions.12
IV. WHY THERE IS NO GENERAL FEDERAL POWER TO RESTRICT Immigration under the
Constitution
I will end by focusing on Congress’s supposed power over immigration.13 If you read Article I of the
Constitution,14 you rapidly come to a very simple conclusion: there is no general power to
restrict immigration there. It just is not listed anywhere in the Constitution. There is a power over
naturalization, to grant or withhold citizenship.15 But naturalization is not the same thing
as immigration. People can live in a country without being citizens. similarly, their movement can
sometimes be restricted, even if they are citizens. The Founders knew that no less than we do.
Today, many would argue that Congress has broad authority over immigration because of the
Foreign Commerce Clause- the power to regulate commerce with foreign nations.16 Such an
approach is consistent with the broad modern interpretation of the Congress power over interstate
commerce.17 But at least as a matter of original meaning, simple movement from place to place was
not considered commerce. The very same clause that gives Congress the power to regulate foreign
commerce also gives it authority over interstate commerce.18 Nobody at the time of the founding or
for decades thereafter thought it gave Congress the ability to ban people from moving from one state
to another.19 If the Interstate Commerce Clause as an original matter does not include that power,
then the Foreign Commerce Clause, which is in fact the very same clause, does not grant the power
to restrict international migration
Many conservatives, including John Eastman, have argued for a similarly narrow interpretation of the
commerce power in other contexts.20 The same reasoning applies here. For the first hundred years
of American history, this was actually the dominant interpretation of the Constitution: that Congress
did not have a general power to restrict immigration.
It was not until the 1870s and 80s that Congress, with the passage of the Page Act and the Chinese
Exclusion Act, enacted systematic immigration restrictions, as a result of an upsurge in anti-Chinese
racism.21 In 1889, the Supreme Court upheld the Chinese Exclusion Act.22 The Court recognized
that this power is not actually listed in Article I of the Constitution, but held that it was an inherent
attribute of sovereignty-something that all governments must have.23
There are two problems with that claim. First, the federal government got along for 100 years without
having this power, so it is far clear that they must have it. Second, if we assume that seemingly
essential powers are present without needing to be enumerated, then why do we enumerate things
that are even more inherent, such as the power to declare war,24 raise armies,25 and so forth?
These powers are far more essential than the power to restrict immigration. Yet they had to be
enumerated. The whole point of enumeration is to ensure that Congress’s powers, and those of the
federal government generally, are limited.26 As Chief Justice John Marshall put it, “enumeration
presupposes something not enumerated.”27 The powers that are not enumerated are not included.
That is the basic principle that originalists usually apply to assertions of federal power. And it should
apply here, as well..
Conclusion
At our best, we should be the nation of the Statue of Liberty, not the nation of walls and deportations.
Freedom for both immigrants and natives alike: That is what will truly make America great again.
Footnote
1. Michael A. Clemens, Economics and Emigration: Trillion-Dollar Bills on the Sidewalk?, J. Econ.
Persp. 83 (2011), http://pubs.aeaweb.org/doi/pdfplus/ 10.1257/ep.25.3.83 [https://perma.cc/JD937VWR]; Bob Hamilton & John Whalley, Efficiency and Distributional Implications of Global
Restrictions on Labor Mobility: Calculations and Policy Implications, 14 J. Dev. Econ. 61, 70 (1984);
John Kennan, Open Borders, 16 REV. Econ. Dynamics 1, 10-11 (2013), http://www.ssc.wisc.edu/
~jkennan/research/OpenBorders.pdf [https://perma.cc/4W66-F2M7].
2. Clemens, supra note 1, at 101.
3. Ernesto Aguayo-Téllez & Christian I. Rivera-Mendoza, Migration from Mexico to the United
States: Wage Benefits of Crossing the Border and Going to the U.S. Interior, 39 POL. & POL’Y 119,
132 (2011).
4. See, e.g., Robert W. Fairlie, Small Bus. Admin., Immigrant Entrepreneurs and Small Business
Owners, and their Access to Financial Capital 1 (2012),
https://www.sba.gov/sites/default/files/rs396tot.pdf [https://perma.cc/7VHBERVE]; Dan Viederman,
What We’re Talking About: The Negative Business Impact of AntiImmigration Laws, DigitalCommons@ILR (Nov. 2011),
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2151&context=gl obaldocs
[https://perma.cc/6EV2-J4FT]; Catherine Rampell, Immigration and Entrepreneurship, N.Y. Times
(July 1, 2013), http://economix.blogs.nytimes.com/ 2013/07/01/immigration-andentrepreneurship/?_r=0 [https://perma.cc/Q87KK2UD].
5. Ilya Somin, Obama Administration Decides to Continue the Use of Racial Profiling
in Immigration Law Enforcement, VOLOKH CONSPIRACY (Dec. 7, 2014),
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/07/ obama-administrationdecides-to-continue-racial-profiling-in-immigration-lawenforcement/?utm_term=.1f1d12b5c959
[https://perma.cc/JWC7-ZD9U].
6. See id.; Ilya Somin, Immigrants are Not the Only Victims of Immigration Restrictions, Volokh
Conspiracy (Oct. 2, 2015), https://www. washingtonpost.com/news/volokhconspiracy/wp/2015/10/02/immigrants-are-notthe-only-victims-of-immigration-restrictions/
[https://perma.cc/DU6D-RFTJ].
7. See S. Comm. on Homeland Sec. & Governmental Affs., 114th Cong., The State of America’s
Border Security 83-93 (2015) (providing for a variety of methods for controlling the border).
8. See Ilya Somin, Increased Immigration is Unlikely to Increase the Size of the Welfare State,
Volokh Conspiracy (Feb. 18, 2014), https://www.washingtonpost. com/news/volokhconspiracy/wp/2014/02/18/increased-immigration-is-unlikelyto-increase-the-size-of-the-welfarestate/?utm_term=.3b2ea75c7536 [http://perma.cc/C9FD-S76T] (reviewing recent research on the
subject).
9. See Zachary Gochenour & Alex Nowrastch, The Political Externalities of Immigration: Evidence
from the United States (Cato Inst. Working Paper No. 14, 2014),
https://www.cato.org/publications/working-paper/political-externalitiesimmigration-evidence-unitedstates [https://perma.cc/XH6Y-XXP3].
10. See, e.g., ALBERT ALESINA & Edward GLAESER, Fighting POVERTY IN THE US AND Europe
(2004); Nate Breznau, Immigrant Presence, Group Boundaries, and Sup- port for the Welfare State
in Western European Societies, 59 Acta SOCIOLOGICA 195 (2016); Gary P. Freeman, Migration
and the Political Economy of the Welfare State, 485 ANNALS am. Acad. Pol. & soc. SCI. 51, 57-58
(1986).
11. Pub. L. No. 104-193, 110 Stat. 2105.
12. For a good overview, see Bryan D. Caplan, Why Should We Restrict Immigration, 32 Cato J. 1
(2012). On the general concept of “keyhole solutions,” see Keyhole Solutions, OPEN Borders,
http://www.openborders.info/keyhole-solutions/ [http://perma.cc/2KT6-PEFK].
13. The argument of this Part is a brief summary of a much more detailed article I am writing on this
subject.
14. U.S. Const. art. I, §§ 1-10.
15. Id. art. I, § 8.
16. U.S. Const. art. I, § 8 cl. 3.
17. See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005).
18. U.S. CONST. art. I, § 8, cl. 3.
19. See generally Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L.
Rev. 101 (2001).
20. See, e.g., John C. Eastman, Minutes from a Convention of the Federalist Society: The Roberts
Court and Federalism, 4 N.Y.U. J.L. & LIBERTY 330, 337 (2009).
21. See Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105
COLUM. L. Rev. 641 (2005); Sarah H. Cleveland, “Powers Inherent in Sovereignty”: Indians, Aliens,
Territories, and the Nineteenth Century Origins of the Plenary Power over Foreign Affairs, 81 TEX.
L. Rev. 1 (2002).
22. The Chinese Exclusion Case, 130 U.S. 581 (1889).
23. Id. at 609.
24. U.S. CONST. art. I, § 8, cl. 11.
25. Id. art. I, § 8, cl. 12.
26. See, e.g., THE FEDERALIST No. 45 (James Madison) (“The powers delegated by the proposed
Constitution to the federal government are few and defined. Those which are to remain in the State
governments are numerous and indefinite.”); 2 Joseph Story, Commentaries on the Constitution of
the United States 369 (1833).
27. Gibbons v. Ogden, 22 U.S. (1 Wheat.) 1, 195 (1824).
AuthorAffiliation
Ilya Somin*
* Professor of Law, George Mason University. This essay is based on a speech delivered at the
Federalist Society Student Symposium in February 2016, as part of a debate with Professor John C.
Eastman. For his contribution, see John C. Eastman, The Power to Control Immigration is a Core
Aspect of Sovereignty, 40 Harv. J.L. & PUB. POL’Y 9 (2017).
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