Question for pro-Trump textualist originalists

[TheFonz]

Let me preface this by saying I'm a textualist originalist first, and a Libertarian second. Partially for practical reasons, but primarily because in my view, any other reading of the law (from the Constitution on down) simply cuts the legs out from it, and leaves the door wide open for judicial abuse. The law means nothing when it can be creatively "interpreted" to mean whatever a judge wants it to mean.

There are several issues where my political beliefs are contrary to what the Constitution allows for. That puts me in the sane category as 99.999% of people. But as a nation of laws, with the Constitution being the supreme source of law, when this happens we must defer to or amend the Constitution.

Both sides are guilty of this, though I believe "conservatives" are to a lesser extent. Y'all can disagree with me. That's fine, but it's not what this thread is about.

So here's my question for small government, textualist originalist Trump supporters. Specifically supporters of Trump's immigration policies.

Can you point me to the line in the Constitution that gives the federal government the authority to regulate immigration? You can't explicitly, because it's simply not there. The word immigration doesn't appear anywhere in the Constitution, nor does an allusion to it. The only thing that's close is the responsibility to regulate naturalization. But neutralization means citizenship, not immigration.

In fact, both Jefferson and Madison, the paragons of textualist ideology, wrote extensively that the power to regulate immigration should be left to the states, not the federal government. In Jefferson's view, if California wants to open their border and let all of Mexico come in, they should be able to do so. But if those people hop the border from California to Arizona, Arizona can deport them.

Madison, who actually wrote the Constitution (and is, therefore, the ultimate authority on the "original meaning") agrees with Jefferson's assessment.

How then do you square originalism with federal border enforcement?

[Person Man]

 If one state wants to give a legal status short of citizenship to immigrants, would other states have to respect it?

How would that even work? Would we have border check points on every state border? This is where things become even trickier.

I understand that one thing doesn't mean another thing but you can't just say that the law was only used in light of a particular situation and can't be interpreted differently in another situation, especially if that situation no longer exists and therefore renders such law meaningless.

[Person Man]

If one state wants to give a legal status short of citizenship to immigrants, would other states have to respect it?

How would that even work? Would we have border check points on every state border? This is where things become even trickier.

I understand that one thing doesn't mean another thing but you can't just say that the law was only used in light of a particular situation and can't be interpreted differently in another situation, especially if that situation no longer exists and therefore renders such law meaningless.

Those are logistical questions that have nothing to do with my post. I'm not asking for solutions or weakness in Jefferson's immigration argument. I'm simply asking if and where the Constitution gives the authority to the federal government to regulate immigration. I don't believe it does, but I'm open to being convinced.

Also, it's not really something that can be "interpreted differently", because there's nothing to interpret. It's not in there. That's like suggesting that the clause about aliens from Mars can be interpreted in different ways. Show me where that clause is, then we'll talk about interpretation.

You don't think being able to federally enforce immigration is not an implicit power just because the only related explicit power is that Congress can make laws regarding naturalization?

[TheFonz]

If one state wants to give a legal status short of citizenship to immigrants, would other states have to respect it?

How would that even work? Would we have border check points on every state border? This is where things become even trickier.

I understand that one thing doesn't mean another thing but you can't just say that the law was only used in light of a particular situation and can't be interpreted differently in another situation, especially if that situation no longer exists and therefore renders such law meaningless.

Those are logistical questions that have nothing to do with my post. I'm not asking for solutions or weakness in Jefferson's immigration argument. I'm simply asking if and where the Constitution gives the authority to the federal government to regulate immigration. I don't believe it does, but I'm open to being convinced.

Also, it's not really something that can be "interpreted differently", because there's nothing to interpret. It's not in there. That's like suggesting that the clause about aliens from Mars can be interpreted in different ways. Show me where that clause is, then we'll talk about interpretation.

You don't think being able to federally enforce immigration is not an implicit power just because the only related explicit power is that Congress can make laws regarding naturalization?

I think that the idea of implicit powers are antithetical to a constitutional system in general, particularly one where three purpose of the constitution is to limit the power and scope of the government to the functions the constitution successfully outlines. However, even disregarding that, the "implicit power" argument goes out the window (for originalists, at least) with the extrinsic evidence mentioned above.

[Vosem]

Congress has the power to regulate "Offenses against the Law of Nations" (and it is a very basic right of nations, including back then, to prohibit individuals from entering) and to "repel Invasions" (and while invasion has a hostile militaristic connotation it doesn't really mean much more than 'entrance'; Milton liked to use 'invade' in this way, for instance).

It was not common practice in the early Republic (indeed, until the 1870s) for Congress to make laws concerning immigration; these things were indeed left up to the states. But it's pretty clearly there among the enumerated powers.

[True Federalist (진정한 연방 주의자)]

Article I Section 8 Clause 4 gives Congress the sole power to set uniform rules of Naturalization.

For those uncomfortable with the idea that power over Immigration is not a Necessary and Proper consequence of regulating Naturalization, Article I Section 9 Clause 1 clearly implies that since 1808, Congress has the sole power to regulate Immigration, since it bars Congress from doing that for twenty years. There's no reason to limit a power Congress does not otherwise possess, be it by the Naturalization Clause, the Foreign Commerce Clause, or some other clause of Article I Section 8.

[Person Man]

Article I Section 8 Clause 4 gives Congress the sole power to set uniform rules of Naturalization.

For those uncomfortable with the idea that power over Immigration is not a Necessary and Proper consequence of regulating Naturalization, Article I Section 9 Clause 1 clearly implies that since 1808, Congress has the sole power to regulate Immigration, since it bars Congress from doing that for twenty years. There's no reason to limit a power Congress does not otherwise possess, be it by the Naturalization Clause, the Foreign Commerce Clause, or some other clause of Article I Section 8.

Isn't that more of a slavery clause? Wouldn't just be simple to say that Congress has the power to write the laws of naturalization and all other laws that are necessary and proper to that end?

[John Dule]

TheFonz is an impressive new poster. Thoughtful and willing to listen.

[True Federalist (진정한 연방 주의자)]

Article I Section 8 Clause 4 gives Congress the sole power to set uniform rules of Naturalization.

For those uncomfortable with the idea that power over Immigration is not a Necessary and Proper consequence of regulating Naturalization, Article I Section 9 Clause 1 clearly implies that since 1808, Congress has the sole power to regulate Immigration, since it bars Congress from doing that for twenty years. There's no reason to limit a power Congress does not otherwise possess, be it by the Naturalization Clause, the Foreign Commerce Clause, or some other clause of Article I Section 8.

Isn't that more of a slavery clause? Wouldn't just be simple to say that Congress has the power to write the laws of naturalization and all other laws that are necessary and proper to that end?

'll grant that Article I Section 9 Clause 1 was written to address a concern of the pro-slavery States without explicitly using the embarrassing term "Slave". However, a side-effect of such circumlocutions was to make it more general.