Eleanor Finch
The United States has a controversial history with immigration. While the country is often mythologized as a nation of immigrants, Congress has passed, and the Supreme Court has upheld, statutes excluding certain groups of people from immigrating to the United States. The power to regulate immigration is not explicitly mentioned in the Constitution, and early immigration cases saw the Supreme Court identify the source of the federal government's exclusive and plenary power over immigration. Later cases found the plenary power to be an inherent sovereign power. The Commerce Clause in Article I, § 8, clause 3, of the United States Constitution provides Congress with the power to regulate Commerce with foreign Nations, and among the several States. The Supreme Court has interpreted this as a federal right to regulate non-citizens.
| Characteristics | Values |
|---|---|
| Control over foreign affairs and foreign commerce | Congress |
| Power to establish a uniform rule of naturalization | Federal government |
| Power to declare war | Congress |
| Power to provide and maintain armies and navies | Congress |
| Power to make all laws necessary and proper | Congress |
| Power to exclude non-citizens | Federal government |
| Power to expel or deport non-citizens | Federal government |
| Power to remove non-citizens | Federal government |
| Power to admit or exclude aliens | Federal government |
| Power to make rules for the admission of aliens | Congress |
| Power to exclude aliens based on ethnicity, gender, legitimacy, and political belief | Federal government |
| Power to deny admission or remove non-citizens | Federal government |
| Power to regulate immigration | Federal government |
| Power to regulate Commerce with foreign Nations | Congress |
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What You'll Learn
The power to declare war
The Constitution of the United States grants Congress the power to declare war. Article I, Section 8, Clause 11, also known as the War Powers Clause, states that "The Congress shall have Power ... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water". This clause gives Congress the authority to initiate hostilities and make rules regarding captures during war.
However, the Declare War Clause has not prevented American presidents from taking the country to war without formal declarations. The Korean War was the first modern example of this, and every armed conflict since has followed suit. Presidents have claimed authorization from informal congressional actions, such as approval of military spending, or even Congress's failure to object to ongoing hostilities. Additionally, presidents have used their power as commander-in-chief to deploy US forces in situations that do not amount to war, such as peacekeeping missions or responding to attacks on the United States.
There is ongoing debate about the extent to which the Declare War Clause limits the president's ability to use military force without congressional approval. While most agree that the clause grants Congress exclusive power to declare war, there is disagreement about whether presidents can initiate military force without a formal declaration. Some argue that the president has independent authority to use military force in response to attacks on the United States, as Madison described at the 1787 Philadelphia Convention.
In recent years, there have been efforts to clarify and reform war powers. In 1973, Congress passed the War Powers Resolution, which requires the president to obtain either a declaration of war or a resolution authorizing the use of force. In 2007, University of Virginia Professor Larry J. Sabato proposed a constitutional amendment that would explicitly define the war powers of each branch of government.
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Migration and Importation Clause
The Migration and Importation Clause, also known as Article I, Section 9, Clause 1 of the US Constitution, states:
> "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."
This clause was included in the Constitution to protect the slave trade from federal interference until 1808. It was also relevant to the transportation of indentured servants, who were considered "articles of commerce" and thus within the scope of the Foreign Commerce Clause. The term "migration" was likely included to avoid direct references to slavery and indentured servitude, and to prevent Congress from using the Foreign Commerce Clause to ban or heavily tax the in-migration of indentured servants.
The Migration and Importation Clause does not grant Congress a general power to restrict migration. Instead, it was designed to limit congressional power over migration until 1808. This interpretation is supported by James Madison, who argued that the clause was intended to protect the slave trade and that the term "migration" was included to address "scruples against admitting the term 'slaves' into the Instrument."
While the Migration and Importation Clause specifically addresses migration before 1808, other constitutional provisions have been interpreted to grant Congress broad powers over immigration. These include the Commerce Clause, the War Powers Clause, and the power to establish a uniform rule of naturalization. These provisions, along with long-standing Supreme Court precedent, recognise Congress's plenary power over immigration, giving it almost complete authority to decide whether foreign nationals may enter or remain in the United States.
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Congress can make immigration laws
The Constitution of the United States grants Congress the power to make immigration laws. The Legislative branch enacts the laws, and the Executive branch enforces them. This power is derived from a combination of international and constitutional legal principles, including the Commerce Clause, the War Powers Clause, and the Naturalization Clause.
The Commerce Clause, Article I, § 8, clause 3, gives Congress the authority to "regulate Commerce with foreign Nations, and among the several States." This has been used to ban the levy of fees upon foreigners wishing to disembark at state ports, as in the Passenger Cases (Sup.Ct.1849). The Migration and Importation Clause, which barred Congress from outlawing the slave trade before 1808, is also relevant.
The War Powers Clause, U.S. Const. art. I, § 8, cl. 11, grants Congress the power to declare war and provide and maintain armies and navies. This implies a federal right to regulate non-citizens, as cited in Nishimura Ekiu v. United States (Sup.Ct.1892). The Naturalization Clause, Article I, grants Congress the power to establish a uniform rule of naturalization, which is the legal process by which a foreign citizen is granted American citizenship.
Congress's power over immigration has been upheld by the Supreme Court in numerous cases, including Kleindienst v. Mandel (1972), where the Court recognised Congress's "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." This power has been used to exclude foreigners on the basis of ethnicity, gender, legitimacy, and political belief. For example, in Ping v. United States (1889), the Court upheld a law that excluded Chinese labourers from entering the country.
In summary, Congress has the power to make immigration laws based on a combination of constitutional provisions and international legal principles. This power has been consistently backed by the Supreme Court and is essential to maintaining the United States as a sovereign nation.
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Federal power over foreign commerce
The US Constitution does not explicitly state that the federal government has the power to regulate immigration. However, the federal government's power over foreign commerce has been used as a source of immigration power.
In the Passenger Cases (1849), the Supreme Court invoked the Commerce Clause to ban state immigration fees, asserting that Congress exclusively controlled foreign commerce and foreign affairs. The Court further upheld this power in the Head Money Cases (1884), where it allowed a federally imposed tax on foreign immigrants.
The Commerce Clause, found in Article I, § 8, clause 3 of the US Constitution, grants Congress the power "to regulate Commerce with foreign Nations, and among the several States." This clause has been interpreted to include the power to regulate immigration, as it falls under the purview of foreign affairs and international relations.
The Supreme Court has generally assigned the constitutional power to regulate immigration to Congress, with executive authority derived from congressional delegations. This power includes the ability to make laws concerning aliens that would be unconstitutional if applied to citizens. Congress has been recognised as having "plenary power" over immigration, giving it almost complete authority to decide whether foreign nationals may enter or remain in the country.
However, it is important to note that the federal power over immigration is not absolute and has been limited in certain cases, particularly when directed at aliens already physically present within the United States.
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Supreme Court precedent
The US Constitution does not explicitly provide that the power to deny admission or remove non-citizens rests with the federal government. However, the Supreme Court has consistently upheld federal immigration regulations against constitutional challenges. The Court has also prevented states from passing legislation that directly impinges on this area of federal dominion.
In the earliest cases, the Court looked to the federal power over foreign commerce. The Commerce Clause in Article I, § 8, clause 3, of the US Constitution provides Congress with the power "to regulate Commerce with foreign Nations, and among the several States." The Supreme Court invoked the Commerce Clause in the Passenger Cases (1849) to ban the levy of state immigration fees on foreigners wishing to disembark at state ports. The Court reasoned that Congress exclusively controlled foreign affairs and foreign commerce, even when the power had not been exercised.
In the Head Money Cases (1884), the Court upheld a federally imposed tax on foreign immigrants, again citing the commerce power. However, as congressional action expanded beyond taxation to other forms of regulation, the Court sought a broader ground for decision.
The Court eventually found the source of the federal power to regulate immigration in a combination of international and constitutional legal principles. The Chinese Exclusion Case (1889) was the first case to hold that the federal power to exclude non-citizens is an incident of national sovereignty.
Long-standing Supreme Court precedent recognizes Congress as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals (aliens, under governing statutes and case law) may enter or remain in the United States. In exercising this power, Congress can make laws concerning aliens that would be unconstitutional if applied to citizens.
The Court has upheld laws excluding aliens from entry on the basis of ethnicity, gender, legitimacy, and political belief. It has also upheld an Executive Branch exclusion policy, premised on a broad statutory delegation of authority, that some evidence suggested was motivated by religious animus. However, the immigration power has proven less than absolute when directed at aliens already physically present within the United States. The Court has determined that aliens physically present in the United States, regardless of their legal status, are recognized as persons guaranteed due process of law by the Fifth and Fourteenth Amendments.
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Frequently asked questions
No, the US Constitution does not explicitly grant the federal government the power to regulate immigration. However, the Supreme Court has interpreted the Constitution as granting the federal government this power.
The Supreme Court has interpreted the Commerce Clause, the War Powers Clause, and the Naturalization Clause, together, as granting the federal government the power to regulate immigration.
Longstanding Supreme Court precedent recognizes Congress as having plenary power over immigration, giving it almost complete authority to decide whether foreign nationals may enter or remain in the United States.
