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HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 40, NUMBER 1 APRIL 2017 POVERTY, INEQUALITY, AND THE LAW THE THIRTY‐FIFTH ANNUAL FEDERALIST SOCIETY NATIONAL STUDENT SYMPOSIUM ON LAW AND PUBLIC POLICY—2016 IMMIGRATION, FREEDOM, AND THE CONSTITUTION Ilya Somin......................................................................................1 THE POWER TO CONTROL IMMIGRATION IS A CORE ASPECT OF SOVEREIGNTY John C. Eastman............................................................................9 JUMP‐STARTING K–12 EDUCATION REFORM Clint C. Bolick..................................................................................17 ECONOMIC EQUALITY IS AN IMMORAL IDEAL Yaron Brook...................................................................................25 AMERICA’S EXCEPTIONAL SAFETY NET Julia D. Mahoney..........................................................................33 THE FREEDOM TO FAIL: MARKET ACCESS AS THE PATH TO OVERCOMING POVERTY AND INEQUALITY Jason Scott Johnston......................................................................41 LESSONS FROM THE LEAST OF THESE Robert Woodson…........................................................................51 ARTICLES DEFYING CONVENTIONAL WISDOM: THE CONSTITUTION WAS NOT THE PRODUCT OF A RUNAWAY CONVENTION Michael Farris...............................................................................61 DELEGATION RECONSIDERED: A DELEGATION DOCTRINE FOR THE MODERN ADMINISTRATIVE STATE Ronald A. Cass...........................................................................147 “AN ARTIFICIAL BEING”: JOHN MARSHALL AND CORPORATE PERSONHOOD Christopher J. Wolfe ...................................................................201 ESSAY A PROPOSAL TO RESTRUCTURE THE CLEMENCY PROCESS—THE VICE PRESIDENT AS HEAD OF A WHITE HOUSE CLEMENCY OFFICE Paul J. Larkin, Jr. ........................................................................237 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor‐in‐Chief PAUL VANDERSLICE Deputy Editor‐in‐Chief Articles Editors DAVID WEBB Managing Editors TIERNAN KANE AMANDA MUNDELL BLAKE LANNING JASON SHAFFER Executive Editors CALEB WOLANEK WILLIAM BERGSTROM JAMES A. D’CRUZ Deputy Managing Editors Articles Board JOHN GREIL ANNE BROWN KELSEY CURTIS CASON HEWGLEY STEPHEN HAMMER BOYD GARRIOTT BRYCE JENSEN GEORGE MALIHA NOAH HEINZ KIRK JING JAKE SUSSMAN ATHENA KATSAMPES Notes Editors JOSIAH KOLLMEYER Chief Financial Officers JOSHUA J. CRADDOCK JASON MANION BOYD GARRIOTT CHRIS GOODNOW KARL WORSHAM JASON SHAFFER Technology Manager Communications Editor KIRK JING GEORGE MALIHA Senior Editors JENNIFER BARROW SAMUEL CLANON JASON HALLIGAN MATTHEW REARDON SARA BERINHOUT JOSHUA J. CRADDOCK RYAN HOAK ABRAHAM SCHWARTZ KATHRYN BOLAS KELSEY CURTIS MUSA KIKA TAYLOR THOMPSON MATTHEW BURTON BOYD GARRIOTT LUKE MCGUIRE ERIC VAN WART Editors BRAD BARBER HAYLEY EVANS VINCENT LI JAMES SASSO SIMON BARNICLE DANIEL FAREWELL CAROL LIN JEREMY SAWYER KAITLYN BECK MAX GOTTSCHALL BRANTON NESTOR GEGE WANG ANNIKA BOONE JORDAN GREENE CODY POPLIN SAM WILLIAMS CASEY CONNOLLY CHAD HARPER RYAN PROCTOR SARAH ZHANG WILL COURTNEY DANIEL JOHNSON DAWSON ROBINSON Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder Steven G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott David B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public Policy is published three times annually by the Harvard Society for Law & Public Policy, Inc., Harvard Law School, Cambridge, Mas‐ sachusetts 02138. ISSN 0193‐4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the Harvard Journal of Law & Public Policy, Harvard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are re‐ newed automatically unless a request for discontinuance is received. The Journal welcomes the submission of articles and book reviews. Each manuscript should be typed double‐spaced, preferably in Times New Roman 12‐point typeface. Authors submit manuscripts electronically to [email protected], preferably pre‐ pared using Microsoft Word. Views expressed are those of the authors and do not nec‐ essarily reflect the views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2017 by the Harvard Society for Law & Public Policy, Inc. THE FEDERALIST SOCIETY presents The Thirty‐Fifth Annual National Student Symposium on Law and Public Policy: Poverty, Inequality, and the Law February 26–27, 2016 University of Virginia Law School The staff acknowledges the assistance of the following members of the Federalist Society in preparing this Symposium for publication: National Editor Amanda Mundell Harvard Law School Executive Editors Tiffany Bates Shiva Logarajah George Mason University Columbia Law School Antonin Scalia Law School Brian Goldman Karthik Venkatraj Columbia Law School University of Colorado Law School General Editors J. Alexandra Bruce Chase Harrington Jin Seock Shin University of Mississippi School of Law Duke University School of Law Southern Methodist University Dedman School of Law Frank Chang James Hasson George Washington University William & Mary Law School Will Simpson School of Law Abby Hollenstein Boston University School of Law Immanuel Chioco University of Virginia School of Law Robert Smith Indiana University Bloomington Adam Nyenhuis University of Virginia School of Law Maurer School of Law Wake Forest University School of Law Elliot Stratton Alex Cummings Thomas Ranieri Southern Illinois University University of Texas School of Law School of Law George Mason University Mariel Eben Antonin Scalia Law School Jason Sumbaly University of Michigan Law School Seton Hall University School of Law James Ruley John Ehrett Indiana University Bloomington Stephen Tagert Yale Law School Maurer School of Law Duke University School of Law Jandi Haegan Paul Schmitt University of Chicago Law School University of Illinois College of Law IMMIGRATION, FREEDOM, AND THE CONSTITUTION ILYA SOMIN* In recent years, many conservatives have come to favor a highly restrictionist approach to immigration policy. But that position is in conflict with their own professed commitment to principles such as free markets, liberty, colorblindness, and en- forcing constitutional limits on the power of the federal gov- ernment. These values ultimately all support a strong pre- sumption in favor of free migration. I. IMMIGRATION AND FREEDOM Let us focus on free markets first. Immigration restrictions are among the the biggest government interventions in the economy. They prevent millions of people from taking jobs, renting homes, and pursuing a wide range of opportunities that they could otherwise have. Economists estimate that if we had free migration throughout the world, we could double world GNP.1 That is not a gaffe or a mispring; it is a real esti- mate. Perhaps doubling GNP is overly optimistic. Still, increas- ing it by, say, 50 percent is a greater effect than virtually any other realistically feasible change in economic policy.2 * Professor of Law, George Mason University. This essay is based on a speech delivered at the Federalist Society Student Symposium in February 2016, as part of a debate with Professor John C. Eastman. For his contribution, see John C. Eastman, The Power to Control Immigration is a Core Aspect of Sovereignty, 40 HARV. J.L. & PUB. POL’Y 9 (2017). 1. Michael A. Clemens, Economics and Emigration: Trillion-Dollar Bills on the Side- walk?, J. ECON. PERSP. 83 (2011), http://pubs.aeaweb.org/doi/pdfplus/ 10.1257/jep.25.3.83 [https://perma.cc/JD93-7VWR]; Bob Hamilton & John Whalley, Efficiency and Distributional Implications of Global Restrictions on Labor Mobility: Cal- culations and Policy Implications, 14 J. DEV. ECON. 61, 70 (1984); John Kennan, Open Borders, 16 REV. ECON. DYNAMICS 1, 10–11 (2013), http://www.ssc.wisc.edu/ ~jkennan/research/OpenBorders.pdf [https://perma.cc/4W66-F2M7]. 2. Clemens, supra note 1, at 101. 2 Harvard Journal of Law & Public Policy [Vol. 40 The reason why immigration restrictions have such an enor- mous effect is pretty simple. People become much more produc- tive when they move from countries where they have little or no opportunity to use their talents, to those where they can be more productive. Just crossing from Mexico to the United States makes a person three or four more times more productive than they oth- erwise would be, even without improving their skills in any way.3 And the opportunities to improve skills are, for most immigrants, far greater in the U.S. than where they initially came from. There is an enormous amount of wealth that can be created just by cut- ting back on our immigration restrictions. But it would be a mistake to say that the issue here is primar- ily economic. It is also, and even more fundamentally, about freedom. When people come to the United States from poor and oppressive societies, they increase their freedom in many ways. Think of refugees fleeing religious or ethnic persecution, women escaping patriarchal societies,
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