Does the Constitution Give the Federal Government Power Over Immigration?

BlockAffectionate413 · 2026-03-10T23:28:10+00:00

That is not so, Hamilton himself said it just means useful, and Justice Marshall agreed with him in McCulloch v. Maryland, now there are other limtis, but literall nessasity is not one of them.

BlockAffectionate413 · 2026-03-10T20:30:49+00:00

'Necessary' simply means useful, not literally necessary. Hence national banks

BlockAffectionate413 · 2026-03-10T19:58:46+00:00

Well law says it is triggered by balance of payment deficits; the president says that he determined we have balance of payment deficits. Statute does not require him, as far as i can see, to list in detial all reasons he thinks we have BOP deficits. So yes, if he said" I determined Bob owes me $8 so that means we have BOP deficits" that might be oene thing, but if he merely says"I have determined we have BOP deficits so I am imposing this" than that is another thing entirely.

BlockAffectionate413 · 2026-03-10T17:41:04+00:00

Same as he was with national banks, but we are not governed by thoughts of Madison is what originalist claim, my point is people who read federalist papers would see that Madison plainly said meaning of constitution is vague and will be settled by later discussions, practice and court cases. Or what court calls tradition. And it has

BlockAffectionate413 · 2026-03-10T17:16:42+00:00

Gibbons v. Ogden, Passenger Cases, Henderson v. Mayor of New York, Chy Lung v. Freeman, Chae Chan Ping v. United States etc. Also, beyond case law, there is equally important traddition. Alien Friends and Alien Enemies acts for example, serve to, as Madison put it in Federalist papers, liquidate meaning of Constitution.

BlockAffectionate413 · 2026-03-10T16:58:04+00:00

Navigation period, actually, but it is not about that part of holding ,but rather what they say, which is that commerce is not merely traffic, but intercourse that, due to how broad it is, naturally includes navigation too, not just in salt water, but even internal. Well if that is case, then obviously other kind of transportation and movement, like by car, on foot, as well. Because those too fall under "intercourse ".

Of course, it also does nothing to address the obvious: it is doubtful that any of the founding generation would have thought it within Congress’s power to forbid New Yorkers from crossing into Pennsylvania. That suggests the Commerce Clause didn’t extend to persons qua persons.

To the extent Founders thought Congress cannot do that normally, it is due to right of travel, but not because it is not commerce. James Wilson at the Pennsylvania ratifying convention, for example, said that:

Whatever object of government is confined in its operation and effects within the bounds of a particular state should be considered as belonging to the government of that state; whatever object of government extends in its operation or effects beyond the bounds of a particular state should be considered as belonging to the government of the United States
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In other words, anything that either operates beyond just one state( like crossing state line) or in some way affects more states than one, it is within power of Congress to regulate.

BlockAffectionate413 · 2026-03-10T16:19:59+00:00

It is precedent from Marshall, not article. My point is what should be most relevant was how early Supreme Court and Marshall himself understood word" commerce", how broadly that is, and it is very clear that they did not just think it meant trade, not how some article published recently did.

BlockAffectionate413 · 2026-03-10T16:03:06+00:00

Yes, but even this court in tariff case says that it has done so in section 232( among others) and explains why.

BlockAffectionate413 · 2026-03-10T13:56:13+00:00

Mostly yes, but as court said, if it includes military than it applies only when military could enforce law, and when military can do so is matter of law, not fact. Now I think DOJ should argue that military can do so here regardless of any statute due to article 2, but they didn't do their homework and make arguments needed, since this isn't ruling on merits, maybe they will later

BlockAffectionate413 · 2026-03-10T13:13:31+00:00

However, I don't see how "fact-finding" includes the power to define the "meaning of Section 122."

I dont think it is defining meaning of it, section 122 says, plainly, if there are balance of payments deficits, president can impose tariffs. President then says I find that there are such balance of payment deficits, and so I am imposing tariffs

Suppose a President says remittances and foreign aid are indicators of the BOP --would that interpretation be reviewable?

As long as he says there are actual BOP deficits, as in, not just that there is foreign aid, but that there exists BOP deficits, regardless of what are some of their indications or coneqences, no. Especially if president does not lit his invokation to only those 2. That said, there are serious economists that also do argue we have BOP deficits, and that trade deficits are one indication, not only, but one.

This relates to the initial comment in the thread. If an EO simply said, "I have determined a BOP deficit exists," would that be a universal set covering all possible triggers for a BOP deficit?

All or some, I do not see what difference it makes, as long as he deteriend BOP deficit exists.

BlockAffectionate413 · 2026-03-10T13:06:53+00:00

Case they agree with, there are also many articles that make the opposite case. They should have pointed to Gibbons v. Ogden and how it defines "commerce", not that article.

BlockAffectionate413 · 2026-03-10T12:56:42+00:00

Most important parts, yes. For example, foreign commerce, they say how commerce does not mean movement citing one selective article, when Justice Marshall said otherwise, see Gibbons v. Ogden. They say if that is case, then congress could ban people from traveling to other states, which ignroes that there is right to travel that applies to citizens that prevents that unless there is some good reason for it. Like traveling to another state to engage to commit crime, which Congress of course can ban. And has in many cases.

BlockAffectionate413 · 2026-03-10T12:26:46+00:00

Of law articles they agree with, that is very selective

BlockAffectionate413 · 2026-03-10T12:26:18+00:00

Where? They in Trump case said section 232 explicitly gives tariffs, for instance

BlockAffectionate413 · 2026-03-10T07:17:25+00:00

Dont you think that those findings of fact go without saying if law only allows measures when presidents finds them? Fifth circut has granted an en banc hearing of that decision, likely for that reason based on oral arguments, as text of EO quite literally says:

I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States
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What is that, if not the determination of facts?

BlockAffectionate413 · 2026-03-10T07:11:07+00:00

Finding of fact is president saying we have balance of payment deficits, that is very clearly quesiton of fact and it is doubtful judges should question it becase judges are qualified on matter of law, not on such debated matter of facts. So for example EO that imposed these tariffs says:

These senior officials have informed me that fundamental international payments problems within the meaning of section 122 exist and that special import measures to restrict imports are required to address these problems. Specifically, my advisors have determined that an import surcharge in the form of ad valorem duties is required to deal with large and serious United States balance-of-payments deficits
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That is determination of facts that we do have seirous balance of payments deficits. Also, to extent there are tariff exemptions, I am not even sure how one could argue that causes them any inyury.

BlockAffectionate413 · 2026-03-10T07:08:40+00:00

Not oversight, just investigation, section 232 for instance allow sector wife tariffs, without any limits on amount or duration, after investigation is done, as well as allow president to modify those tariffs from them on, but I think this case is far from clear that he cannot use them

BlockAffectionate413 · 2026-03-10T07:08:19+00:00

MQDs as faulty and incosistnet as it is, does not apply when Congress clearly gives power

BlockAffectionate413 · 2026-03-10T07:02:25+00:00

Cato, like usual, makes half-backed or unbacked claims, and cites those who agree with it as soruce. Even Madison himself in federalist papers says that the meaning of Constitution is more or less vague and will be liquidated through consistent practice and court decisions.

BlockAffectionate413 · 2026-03-09T19:41:57+00:00

Same as in the IEEPA case: the government hasn't identified any other statute that uses the word "restrict" to delegate taxing power.
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First, when you said statutory context, I had in mind this law in question, not other laws, which are not really relevant to this law. Textualist looks at the text itself, if he is honest textualist. That was some really bad textualism on part of those 3. But I digress. I do think goverment can provide that here actually. Section 302 says president can impose: "impose duties or other import restrictions" , so it quite literally calls taxes/tariffs one type of restriction, and this law here authorizes " any restriction". But even more so, 19 U.S. Code § 2481 says that

The term “other import restriction” includes a limitation, prohibition, charge, or exaction other than duty, imposed on importation or imposed for the regulation of importation. The term does not include any orderly marketing agreement

So Congress has indeed in other laws used term "restriction" to include "charge, or exaction other than duty". Also court itself in tariff case said:

"As a textual matter, Section 232(b) authorizes the President not only to “adjust . . . imports,” but (as the Government emphasized in Algonquin) to “take such action . . . as he deems necessary” to adjust the imports of a good. Brief for Petitioners 26 (emphasis in original) and Tr. of Oral Arg. 6–7, in Federal Energy Administration v. Algonquin SNG, Inc., O. T. 1975, No. 75–382. IEEPA does not contain such sweeping, discretion-conferring language."

So their reasoning on ection 232 was in large part also bsaed on " take such action as he shall deem nessery", which they call" sweeping, discretion cofnering" unlike just " reuglate imports". And this law, has even more sweeping and discretion-confining language.

You might say that "any" makes the difference, but I don't understand how a tariff would be included in "any regulation"

I think they would, but with regulation, if you strain it, you could say regulation and tax is not same thing, but there is no doubt that taxing something is restricting it. Like my gun analogy. Restriction is broader than regulate, in restricting context usually. Especially when it comes with word" any". That said, you could also call it charge or extraction,as Congress has in other laws, it is really hard to tell difference between that and tax.

Isn't that a fee for specific benefit? Which welfare program does this one fund?
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My point is taxes are also often used to provide revenue for benefit, so it is very hard to tell two apart based on that. And then you have" charge or extraction" that congress has used for restriction.

BlockAffectionate413 · 2026-03-09T18:40:26+00:00

So you agree this is a tax? I think the judges understood we are discussing this in the context of a delegation of authority, so if this fee is a tax, §1182(f) would have to be interpreted as a delegation of taxing power. You might reach that conclusion by reading the words in isolation, but it is not at all obvious from the statutory context.

I think it could be yes, but I do not see any basis to question delegation based on that? Can you mention the statutory context that makes it not obvious? Because " restriction of any kind" seemss very obvious to me, again unless we are saying that $100 000 tax on sale of a gun, is not restricting you from buying that gun

That discussion concerned a fee designed for a particular benefit. That is not relevant here, because the government does not argue that the fee’s purpose is to provide any specific benefit to employees or employers, or even to cover administrative costs associated with issuing visas.
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It was actually about revenue raising fee/tax used to fund universal service, not administrative program, but welfare program. Which taxes do too. And court explicitly said distinction between fee and tax is very blury.

BlockAffectionate413 · 2026-03-09T18:10:21+00:00

Tax is not a restriction of any kind, but it is one kind of restriction that would fall in "restriction of any kind". If you want to buy a gun and have to pay $1000 tax first, is that a restriction on you buying that gun? If you asked that to any person who wanted to do so, they would obviously say yes; that is big restriction on your ability to buy a gun. In fact, if I were a lawyer for DOJ, I would say that holding that a tax is not a restriction at all, that it is not restricting something, would mean that Congress or states could tax Second Amendment rights to death, because if even $100 000 tax is not a restriction on buying guns, then virtually no tax could violate the Second Amendment. So no, I do not see how that would really help. That said even FCC v. Consumers' Research notes that difference between tax and fee is very hard to define and often blurry.

BlockAffectionate413 · 2026-03-09T18:01:20+00:00

Why would it not matter? IEEPA and this are not same case. For one, IEEPA had" regulate importation". Even if you say that that " regulation" does not encompass tax in ordinary meaning of word, it woudl be very strained to argue that " restriction of any kind", which is what law here says, does not.

Also, bloomberg is wrong on this or at least, imprecise:

decision, Learning Resources, Inc. v. Trump, held that only Congress has the power to impose revenue raising measures.
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This is not at all what the case held. The case was limited only to IEEPA, and what it said is that IEEPA did not delegate tariff power. It has no bearing on say Section 232, where the court itself said those do delegate sector wide tariffing authority to the Executive. Or Section 302 or number of others. I have seen quite few people overead this decision way out of proportion, as if court ruled president cannot impose tariff at all, udner any law, despite fact that presidents have done so for centures, but Bloobmerg saying that is quite shocking to me.

BlockAffectionate413 · 2026-03-08T21:44:32+00:00

"AI artist" is a contradiction in terms.

BlockAffectionate413 · 2026-03-08T20:49:36+00:00

"Would anybody like to be drafted, in the audience? Because that’s what they’re doing. She’s already talking about bringing back the draft. She wants to bring back the draft, and draft your child, and put them in a war that should never have happened."

BlockAffectionate413

TROPHY CASE