Roe vs. Wade came as a shock, even to people who believe the power to regulate abortion is reserved to the states. Lost in the triumphant celebrations of the decision on one side and the abject horror and hysteria on the other is the fact states like my own (New York) are now less restricted in liberalization of their abortion laws.

The 1973 decision didn’t just strike down state laws prohibiting abortion. It wrote new ones, something no court, state or federal, has any legitimate power to do. This is the other edge of the sword in allowing federal judges to override state law. They have taken the power away from the states forever.

The Court did two things in its Roe decision. First, it implicitly affirmed the Incorporation Doctrine, the legal theory that the Fourteenth Amendment “incorporated” most of the first ten amendments to the Constitution to apply against the states. I recently had the opportunity to discuss this with constitutional scholar and historian Kevin Gutzman on an episode of my podcast (neither of us believe the doctrine is valid).  

The Incorporation Doctrine was necessary to arrive at the original Roe decision. It provides the basis for a federal court to strike down state laws. Without this doctrine, the Bill of Rights is only applicable to the federal government, leaving protection of individual rights to the bills of rights in the state constitutions.

Second, the Court narrowed interpretation of the Incorporation Doctrine to those rights specifically enumerated in the Constitution or “rooted in the Nation’s history and tradition.” The Court did not find any evidence of an American tradition of a right to abortion, but rather a tradition of precisely the opposite: the longstanding tradition of states prohibiting abortion before Roe.

Note that this is not a finding that no right to abortion should exist. It is merely a finding that protecting this right, if it does exist, is not a power delegated to the federal government.

Neither is regulating immigration, according to James Madison, the man who wrote the words of the Constitution. In his Virginia Resolution of 1798, in opposition to the Alien and Sedition Acts, he wrote,

That the General Assembly doth particularly protest against the palpable and alarming infractions of the constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government;

Like Roe vs. Wade, the federal government’s power to regulate immigration was simply “discovered” by the Supreme Court in a decision at least as spurious as Roe. There are no words in the Constitution indicating this power is delegated to the federal government.

Proponents sometimes point to the naturalization power as somehow implying a power to regulate immigration. But this is ridiculous. Naturalization concerns only the power to determine who becomes a citizen of the United States. It has nothing to do with regulating who can or cannot cross the borders of any of the states.

Others point to the 1808 clause as meaning the federal government was delegated the power after 1808. While this argument is slightly more plausible, both it and the naturalization clause were written by Madison himself, who nevertheless stated regulating immigration was a power “no where delegated.”

Jefferson added in his own Kentucky Resolution of the same year that the 1808 clause was added merely out of “abundant caution,” not a grant of this new power after 1808.

As there has been no subsequent amendment to the Constitution delegating this power to the federal government, it must remain with the states.

While the Incorporation Doctrine would not apply as this is not a dispute regarding the federal Bill of Rights, it is noteworthy that at the time of the decision, there was no tradition or history of the federal government regulating immigration. On the contrary, the case in which the Court concluded this was a federal power concerned a dispute over the way the California State immigration officers were regulating immigration.

If there has been a federal power as contentious as regulating abortion, it has been regulation of immigration. Cities run by liberal politicians have declared themselves “sanctuary cities” in defiance of federal immigration laws. States like Florida and Texas, run by conservative politicians, have taken to shipping “undocumented immigrants” sent to their states either back to their point of entry or to Washington, D.C. in protest.

This is no way to conduct civil society.

The rancor over immigration is the predictable result of the federal government exercising authority never delegated to it by the states. The Post Office may be abysmal, but it doesn’t inspire the hatred federal immigration enforcement does because it is recognized as a power the states agreed to delegate to the federal government.

If either Democrats or Republicans brought a case on immigration, it would test the Court’s conviction to its constitutional principles. Immigration checks all the boxes of the Court’s own reasoning for a power improperly usurped by the federal government through a previous SCOTUS decision. In Dobbs, the Court wrote, “This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”

In the cases of both abortion and immigration, that is precisely what the Court did. Overturning Chy Lung vs. Freeman would right precisely the same wrong.

It is not as if federal regulation of immigration is working now. Under both liberal and conservative presidents, the process to immigrate legally has been woefully deficient, resulting in millions of immigrants entering the country illegally or (more often) staying long past their visas expire. There is every reason to believe the states would do a better job at this and could also tailor their immigration laws to be as strict or lenient as they wish.

To those who find the consequentialist arguments of Chy Lung vs. Freeman compelling, there is an opportunity to offer an amendment to the Constitution to properly delegate this power to the federal government. This would not simply be a dead-on-arrival letter. It would give Americans across the political spectrum a chance for input on the language of such an amendment and the limits, or lack thereof, on the power.

If no amendment agreeable to the requisite number of states can be written, then the process of trying will have proven this is a power which must be reserved to the states. If an amendment can be ratified, then the federal government can go on sucking at regulating immigration, just as it does at delivering the mail, without risking a civil war.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?