Since the current majority on the Supreme Court is embracing (at least rhetorically) "originalism" and are basing their opinions on a look at what the intent must have been at the time the constitution or statute was originally passed, someone should bring a case arguing that all restrictions on immigration are unconstitutional.
The Constitution does not contain any provision that allows Congress or the President to restrict who crosses the border. It does give Congress the ability to set rules for naturalization (i.e. making a non-citizen a citizen), but that's it. In the late 19th Century the courts began interpreting Article I, Section 8, Clause 3, which gives Congress the right to "regulate commerce with foreign nations," to implicitly give Congress the right to pass laws about the movement of people across the U.S.'s international borders. But the same clause also gives Congress the right "to regular commerce... among the several states" and that does not give Congress the right to restrict movement of people between states (on the contrary, the Courts have recognized an implicit right to interstate travel which cannot be limited by an act of Congress). So it makes no sense how nearly identical language would give Congress the unfettered right to restrict travel across one kind of border and prohibit Congress from restricting travel at all across another kind of border.
Originalism as practiced by the current majority is bullshit. In Dobbs v. Jackson Women's Health, Justice Alito claimed that whether there is a right to abortion under the 14th Amendment should depend upon the abortion restrictions that were in place when that Amendment was passed. His historical analysis used to justify that conclusion is complete garbage. Similarly in New York State Rifle and Pistol Association v. Bruen, Justice Thomas looked to the laws regulating gun possession when the Second Amendment was passed to determine if New York State's current gun laws are constitutional. Again, the Justice's analysis of the historical record was sloppy and amounted to little more than cherry-picking the instances in the historical record that supported the outcome he preferred. But it is clear that the current majority thinks the legitimacy of a law depends upon its ability to find some similar laws in place when the relevant constitutional provision was enacted.
Which would make it really fun to see them try to apply that methodology to restrictions on immigration. Because the historical record is crystal clear. The founders did not pass any restrictions on the borders of the U.S. The U.S. had open borders (in which anyone could cross into the U.S. without restriction), for the first 100 years of its existence. To the best of my knowledge, there is no late-18th century law that Alito or Thomas can even cherry pick to support our current closed borders. The first immigration restriction in U.S. histroy was the Chinese Exclusion Act, which was not passed until 1882 after any relevant constitutional provision was ratified. Unless they abandon their pretense of originalism, there just isn't anything during the time that the Constitution was written to justify our current laws.
Don't get me wrong, I know the conservative majority will immediately jettison their commitment to "originalism" to keep out those scary foreigners and uphold restrictions on immigration if they are forced to look at the issue. But I want to see them do it. I think it would be a good illustration of what a farce their jurisprudence is if they were.
