The enumeration and immigration
In an episode on immigration, Bob Zadek framed the question as one of responsibility: who under the Constitution is in charge of regulating who may enter the country—the president, the Congress, or someone else—so that, as he put it, “at least we know who to yell at when things are a mess.” The Immigration Crisis in Context (2021)
Alex Nowrasteh answered that the Constitution says nothing about immigration. The powers of Congress enumerated in Article I, Section 8, he said, do not list immigration; they list everything else, including the power to raise taxes, raise an army, build a navy, establish post offices and post roads, and weights and measures. In the federal system envisioned by the Founders, he argued, the states would have had a great deal of power over immigration, but it would not have been Congress’s. The Immigration Crisis in Context (2021)
Nowrasteh said this changed in 1889, when the Supreme Court invented the power and held that Congress has what is called plenary power over immigration, meaning it can do whatever it wants. He characterized the Court as having invented this power “out of nothing,” saying it appealed to no sovereignty clause in the Constitution but simply made the power up. Since the 1880s, he said, Congress has created an enormously complex body of immigration law, second in complexity only to the income tax, while at the same time giving the president an enormous amount of power over the system. The Immigration Crisis in Context (2021)
The result, on Nowrasteh’s account, is an extra-constitutional system of immigration regulation. He attributed the mess at the border and inside the United States, and the restrictive government-created system limiting who can enter, primarily to the Constitution’s silence on immigration, the Supreme Court’s invention of plenary power, and Congress’s delegation of much of that power to the president. The Immigration Crisis in Context (2021)
The enumeration as assignment of prerogative powers
A separate episode, on a drafted conservative constitution, treated Article I, Section 8 from a different angle. Ilan Wurman said his draft kept the post office, which remains in Article I, Section 8 of the Constitution, though his version placed it in Article I, Section 11 after reorganizing the document and interpolating the Bill of Rights into the sections where he thought they belonged. He noted that the post office is a favorite of strict constructionists and libertarians, and that his team amended the language to say Congress shall have power to establish a system for the prompt and efficient delivery of the mail—language that, he said, does not necessarily imply a monopoly on delivery and could allow for private contractors. The Conservative Constitution (2021)
Wurman’s larger claim concerned the purpose of enumeration. He said the founding generation took a list of the royal prerogative powers exercised by the king, the list in Blackstone, and assigned most of them to Congress. On his account, everyone thinks the enumeration of power in Article I, Section 8 was intended to limit the national Congress’s power—and that is in fact what it does—but the founders probably enumerated power because that was the only way to assign the historically royal prerogative powers over war and peace, over commerce, over immigration, and over raising and regulating troops to Congress. The Conservative Constitution (2021)
He added that the Constitutional Convention rejected a resolution to enumerate power, called Resolution 6, in favor of a resolution giving Congress all legislative powers over matters in which the separate states were independent or separately incompetent, and that the Committee of Detail then enumerated the power anyway, ignoring the convention’s instructions. He credited William Crosskey, whom he described as a Chicago professor in the 1930s, with first coming up with the observation that over half the powers in Article I, Section 8 are directly taken from Blackstone’s chapter on the royal prerogatives. Wurman called it a kind of myth that we have an enumeration of power, while granting that the enumeration does in fact and in effect limit the national government’s power, which he called a good thing. The Conservative Constitution (2021)
The Anti-Federalist critique and the balance of powers
Wurman also connected the enumeration to the Anti-Federalists, who he said had a critique of the founders. The Anti-Federalists thought the judiciary would slowly accrete power to itself through precedents and judicial review; Alexander Hamilton had responded that the judiciary has only the power of judgment, not will or force, and lacks the purse and the sword. Wurman said the Anti-Federalists were in some respects prescient, and that the Supreme Court has an outsized role in modern American politics. The Conservative Constitution (2021)
The Anti-Federalists also feared the executive, and Wurman said that if one looks at how the founders wrote the Constitution, they assigned most of the royal prerogative powers to Congress, so that Congress was supposed to have a lot more say in foreign affairs than the modern imperial presidency has. He said the Anti-Federalists were prescient about the risks of an imperial presidency and about Congress aggrandizing power to itself vis-à-vis the states, and that it took 150 years, then 200 years, for them to start becoming right—mostly, he said, because of our failings as a people and the habit of letting politics and political ends trump constitutional principle. The Conservative Constitution (2021)
Wurman described his draft’s objective as taking the framers’ principles—self-government, liberty, separation of powers, federalism—and providing a corrective, restructuring and rebalancing the Constitution to be more faithful to what the framers had hoped would be the balance among the branches and the states. He said the founding generation was largely right about the principles it sought to enact, and that the framers were correct for their time to think their Constitution improved on what came before. The Conservative Constitution (2021)
Across episodes: two readings of the same clause
The two episodes treat Article I, Section 8 in ways that do not so much develop as diverge. In the immigration episode, Nowrasteh reads the clause’s silence on immigration as evidence that Congress was never granted the power, and treats the 1889 Supreme Court decision recognizing plenary power as an invention out of whole cloth. The Immigration Crisis in Context (2021) In the conservative-constitution episode, Wurman reads the same enumeration as a device for assigning royal prerogative powers—naming immigration among them—to Congress, and treats the clause as limiting in effect even though its origin was not chiefly limiting. The Conservative Constitution (2021) The earlier treatment locates the problem in judicial invention; the later treatment locates the clause’s meaning in the founders’ assignment of prerogatives. The excerpts show no reconciliation of the two positions.
What the sources do not cover
The excerpts do not identify the 1889 Supreme Court decision by name, nor state which constitutional provision or amendment any case turned on. They do not name the immigration statute or statutes Congress enacted, nor the bill or document embodying Wurman’s draft beyond his description of its article and section numbering. The excerpts also break off mid-exchange at points, and no excerpt states the outcome of the plenary-power doctrine in later litigation.