I'm John Eastman, I'm the Henry Salvatori professor of law and community service at
Chapman University's Fowler School of Law. Ilya Somin, a professor at a George Mason
University, and I debated the issues about immigration at the Federalist Society’s
Student Symposium. My position on borders is very simple. There
should be open borders, which means as a general rule, no restrictions on people's freedom
of movement, based simply on where they happened to be born.
My take on this is that every sovereign nation has the power to decide who it's going to
admit into body of politic, inside it's borders and then continuing on to who will make full
citizens. Under modern Supreme Court precedent, Congress
has almost unlimited power over immigration but this is not true under the original meaning
of the Constitution. Quite simply there is no enumerated power in the Constitution which
gives Congress the general power over immigration. It just simply doesn't exist.
Deciding the rule on who are going to become citizens is given to Congress under the power
of naturalization. And then deciding the rule on who will be allowed to enter into the country
to begin that step towards naturalization, I think is necessarily a subsidiary power
given to Congress, although it's implied rather than explicit. But setting the rule is a legislative
act, not an executive act, in the way that deciding where to send out troops is, and
so I think there's very good reason to think that Congress is the one that as that plenary
of powers. The courts for more than a century have recognized.
The founders, just like we, perfectly well understood that people could live on U. S.
territory without being citizens. Indeed even the very first naturalization act stated that
people could come into the country but only after some period of years would they be eligible
to become citizens. So Congress does have almost unlimited power over deciding which
foreigners can become citizens. That is not the same thing as the power to restrict migration.
We gave that policy, that judgment, that policy making authority to Congress because we knew
there were a lot of variables: How many people from which parts of the world? How many people
can you bring in from a despotic regime without undermining our own Republican institutions?
Those are inherent balancing policy questions, and we gave them to the people who are most
directly accountable to the sovereign authority in this country and that's our elected representatives
in Congress. If we allow freedom of movement that can massively
improve the lives of millions of immigrants, and also by the way of large numbers of Americans
who could then freely make transactions with these people. Economists estimate that if
there were freedom of movement throughout the entire world that would close to double
world GDP, and even more importantly it would be an enormous increase in freedom particularly
for people who are fleeing poverty and oppression. It would prevent us from, for example, prohibiting
criminals and paupers, the insane, people with communicable diseases from coming to
this country and everybody at the founding generation thought it was an easy question
could they be barred from entry. I say we do so in exactly the same way that
we prevent crime and terrorism by native born Americans: If we have evidence against particular
people that they might be planning a violent crime or a terrorist attack, then by all means
we can go after them and it would actually be easier to do this if we had open borders
because we would free up all the resources that are currently spent in trying to apprehend
people whose only crime is that they want to come into the U. S. and peacefully get
jobs and improve their lives. An open borders policy essentially refuses
to recognize that even though all human beings have inalienable rights, we come together
as distinct peoples and distinct sovereigns in order to create government that we think
is best to protecting those rights. And who we decide in this country as part of that
body politic is part of the very essence of what it means to be sovereign. Open borders
policy would ultimately destroy any notion of sovereignty.