How courts built federal control over immigration in America

The U.S. Constitution says surprisingly little about the power to regulate immigration. Nonetheless, the structure of the national government has allowed for a homeostasis to be reached. Congress and the executive branch of the federal government have primary authority over a national system of immigration regulation. The states play a more limited, secondary role.

The Constitution's silence on immigration

No provision of the Constitution expressly affords the federal government the power to regulate immigration. The one specific immigration provision is Article I, sec. 8, clause 4, which instructs Congress "[t]o establish a uniform rule of naturalization."

The lack of a provision expressly authorizing the general regulation of immigration is not surprising. Reacting to a king who had restricted immigration to the colonies in order to maintain power, the framers of the Constitution wanted to encourage settlement of--and immigration into--the territories. In addition, addressing immigration implicated the movement of slaves, a highly contentious issue in the framing of the Constitution.

With one notable exception, the Reconstruction Amendments after the Civil War did not change the constitutional authority over immigration. In overruling Dred Scott v. Sandford (1857), which denied U.S. citizenship to a freed slave, the Citizenship Clause of the Fourteenth Amendment made citizenship upon birth in the United States the fundamental law of the land. In United States v. Wong Kim Ark (1898), the Supreme Court applied the Clause to afford citizenship to a person born on U.S. soil to Chinese citizen parents, thereby honoring the rule of birthright citizenship. The Court in Trump v. Barbara has before it the constitutionality of President Trump's executive order seeking to deny birthright citizenship to the children of undocumented immigrants.

The Supreme Court has interpreted the Equal Protection Clause of the Fourteenth Amendment, which guarantees persons equal protection of law, to offer limited protections to noncitizens. For example, the Supreme Court in Trump v. Hawaii (2018) rejected an Equal Protection challenge to President Trump's ban on the admission of Muslims to the United States.

The Supreme Court and federal primacy over immigration

Before the first comprehensive federal immigration laws, states sought to regulate immigration through restricting immigration into their jurisdiction of criminals, the poor, racial minorities, political undesirables and other groups. The Supreme Court struck down several of those laws, including a California one attempting to limit Chinese immigration in the 1800s. Chy Lung v. Freeman (1876). More recently, the Supreme Court in Arizona v. United States (2012) struck down much of an Arizona law found to intrude on the federal power to regulate immigration. Even more recently, some states, such as Florida and Texas, have passed immigration enforcement laws, which have been challenged in the courts.

The Supreme Court eventually settled on the Commerce Clause (Art. I sec. 8, clause 3), which gives Congress the power to regulate interstate commerce, as providing a constitutional hook for federal immigration regulation. The Court reasoned that, like interstate commerce, the national government, not the states, could regulate immigration to the nation in a uniform fashion.

Despite the lack of express constitutional authority for the national government to regulate immigration, the Supreme Court has held that Congress and the president have "plenary power" --or absolute authority--over immigration. In The Chinese Exclusion Case (1889), the Supreme Court upheld immigration laws that generally barred immigration from China and declared that those laws are immune from review for their constitutionality. The end result has been that the immigration laws throughout history have responded to political pressures to discriminate against people of color, political minorities, non-Christians, women, LGBTQ+ persons, criminals, the poor and others.

It is settled law today that the U.S. government has primary authority to regulate immigration, with states playing a role in addressing the health, welfare, safety and morals of immigrant residents or, consistent with federal law, assisting the U.S. government in immigration enforcement. Judicial review of U.S. immigration law is primarily limited to ensuring that noncitizens facing removal from the United States receive due process of law and that the president complies with the immigration laws passed by Congress.

Congressional versus presidential power over immigration

Although the U.S. Congress has the power to decide which categories of immigrants to admit and deport from the United States and the president enforces the laws, the boundaries between the two branches blur in some instances. One contemporary dispute involves the Deferred Action for Childhood Arrivals policy (DACA), announced by President Obama in 2012, that provides limited relief from removal for undocumented immigrants who came to the United States as children. President Obama explained that DACA was an exercise of prosecutorial discretion in deciding which immigrants to prioritize for removal from the United States. Claiming that DACA was an unlawful amnesty not passed by Congress, others argued that the policy violated the constitutional requirement that the president "take Care that the Laws be faithfully executed." Art. II, sec. 3. Even though the Supreme Court rejected his effort to rescind the policy, President Trump refuses to accept new DACA applications. Dep't of Homeland Sec. v. Regents of the University of California (2020).

Lawsuits regularly claim that the executive branch is violating provisions of the immigration laws passed by Congress. Exercising discretion under those laws, President Biden fashioned various forms of relief for migrants, which President Trump has sought to dismantle.

Conclusion

As in many other areas, the framers of the Constitution could not envision dramatic changes in circumstances, such as the ease of modern travel and the mass movement of people across borders. Nonetheless, the constitutional structure over time has produced a relatively stable allocation of legal authority over the regulation of immigration. There are questions about the effectiveness of enforcement of the U.S. immigration laws. Congressional gridlock on immigration reform, however, has little to do with the Constitution and much to do with the contentious politics of immigration.

Kevin R. Johnson is Mabie/Apallas Professor of Public Interest Law and Chicanx Studies at the University of California, Davis School of Law.