Immigration Law and Liberty

The Constitution nowhere says that the federal government has any legitimate power to regulate immigration. This makes sense, since government has no business telling people where they can be. The right to move about freely is, after all, the very essence of “freedom,” and the Framers of the Constitution obviously understood this.

Despite the absence of immigration from the “enumerated” powers given the federal government, Congress has gone ahead and taken the power anyway, and the Supreme Court has allowed it. This government takeover was, of course, a pure power-grab by Congress and a blatant example of judicial activism by the Supreme Court.
The Constitution does give Congress the power to regulate naturalization, but immigration and naturalization are two very different things. People can be citizens of a country without living there and can live in a country without being citizens. Millions of Americans live abroad, for example, and this is not to mention the hundreds of millions whose business or personal lives take them back and forth across national borders every year: Citizenship and presence in the country have no necessary connection. The bottom line is that the Framers expressly mentioned “naturalization” and omitted “immigration” in listing and limiting the powers of the federal government.
Many people pretend to be strong supporters of liberty but then call for strong and wide-reaching immigration restrictions. These people do not, obviously, take liberty seriously.

This is not to say that no immigration rules could ever possibly be consistent with a pro-liberty stance. There may be compelling governmental reasons for targeting certain immigration-related problems, such as people coming to live in the U.S. with no jobs or useful skills to support themselves. Making liberty a fundamental right would not prevent laws that are narrowly tailored to address these problems—so long as they use the least restrictive means to achieve their purpose. Our present immigration laws, however, go way overboard.


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