A "federalist approach" to immigration reform would be a disaster

I had thought that the current agenda for any sort of “immigration reform” was pretty clear following the last election cycle. There would be no discussions of amnesty or any other priorities of liberals and open borders advocates until the border was secure and progress was being made on getting at least the worst offending criminal illegal aliens out of the country. Apparently I was mistaken. Ilya Somin, writing at the Volokh Conspiracy, is pitching a very different vision of “reform” this week in support of an immigration legislation package being put forward by Republicans Ken Buck and Ron Johnson.

In it, Somin describes a proposal which would revamp and potentially expand portions of the visa program by essentially turning control of issuing them over to the states. And he chooses to frame this argument by saying that it’s really what the authors of the Constitution had in mind.

For the last century or more, immigration policy has been dominated by the federal government. That’s an inversion of what most of the Founding Fathers expected. James Madison and Thomas Jefferson, among many others, objected to the Alien Acts of 1798 in large part because the original meaning of the Constitution did not give Congress any general power to restrict immigration, but rather largely left the issue to the states.

We are unlikely to fully restore the original meaning of the Constitution. But earlier this week, Republican Senator Ron Johnson (Wisconsin), and Representative Ken Buck (Republican, Colorado), put forward a proposal under which states would exercise considerably greater power over migration. The proposal would allow each state to admit guest-workers from abroad for a period of up to three years, that could then be renewed by the state. The visas in question would still be issued by the federal government, but largely at the discretion of the states.

There are two major problems with this approach, one constitutional and the other practical. Let’s start with the former. Somin claims that, “the original meaning of the Constitution did not give Congress any general power to restrict immigration, but rather largely left the issue to the states.”

To back up his claim that Congress has no power to restrict immigration Ilya Somin cites, well… Ilya Somin, in a separate article he wrote for an outlet somewhat tellingly named “Open Borders.” I’m afraid I’m going to have to take issue with that somewhat daring interpretation which you can click through and read for yourself.

It’s true that the Founders didn’t seem to spend a great deal of time thinking about the question of immigration. Or if they did, the topic didn’t get a lot of play in the final cut of the document they produced. But it’s not entirely silent on the subject either. Article I, Section 8 of the Constitution actually says that Congress, not the states, shall have the power “to establish a uniform rule of naturalization.” Somin attempts to argue that naturalization is merely the process of becoming a citizen and not the physical act of entering the country, but that’s fairly thin gruel for this debate. In order to become a citizen, the process most certainly involves coming to the country unless you were born here (thus nullifying any questions of becoming a citizen). This is a distinction which the Founders clearly understood when they mentioned similar criteria in Article II Section 1.

But we don’t need to simply rely on those breadcrumbs to find out that the authors of the Constitution had already thought this through. The Founders had given the subject even more consideration, because they followed that up in Article I Section 9 by saying, “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.” Clearly they were giving the states the right to make decisions on immigration in the short term, but it was very short indeed. Those powers were designed to expire in a handful of years and they did so. Why on Earth would the Founders specifically reference the power of the states to regulate “migration or importation” (which obviously and absolutely describes immigration beyond any doubt) and put an expiration date on it unless they were talking about such power shifting to the federal government? Or, if we must dance on the same head of a semantic pin that Somin is relying on, even if the states had the power to regulate the migration or importation of aliens at the beginning, they were only assured that Congress would not “prohibit” it until 1808. After that, Congress could and did take charge. The premise being argued by Somin seems absurd in light of those facts.

Somin’s final argument seems to be that absent a clear mandate for the federal government to have this power it should go to the states. That’s an obvious reference to the Tenth Amendment and would clearly hold true were it not for the inconvenient fact that the Constitution does recognize the need for such authority and removes it from states following the year 1808. Enough about that.

On to the practical side of the discussion, which I’ll keep short. Allowing the states to take charge of the number of H-1B style visas which are issued in the fashion described would be a disaster on several counts. First of all, we would need to also turn over the responsibility for tracking the visa recipients to ensure they didn’t overstay their welcome. We can’t even manage that at the federal level today, and that’s with several massive law enforcement agencies already in place who are supposed to be taking care of it. Who at the state level will be put in charge of this task and what resources and manpower do they all have to tackle the job, to say nothing of experience in doing so? The answer is that none of them are prepared for the task.

Also, this proposed system wouldn’t tie the H-1B visa to any single employer. Currently that’s one of the only ways to find out if someone is no longer complying with the rules or is in an overstay situation. By allowing them to switch jobs (or go to having no job) you’ve lost the one thread you could pull in terms of keeping track of them. It’s pretty much a red carpet invitation to abuse the visa system and disappear into the crowd.

There’s simply nothing about this plan which sounds either wise or practical and it opens up the system to even further abuse. We should stick with the program set forth in the conservative agenda. Secure the border. Track down and deport illegal aliens as much as is possible. And maybe then we can talk about various other reforms when the situation is more under control.

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