II. CONSTITUTIONAL LAW

In this section, we will discuss the Constitutional Foundations of Immigration Law. The federal government has exclusive power to regulate immigration in the United States. Supreme Court decisions have established that states cannot have their own immigration laws. If every state had its own immigration laws, it would create a complicated and contradictory patchwork of regulations, leading to conflicts between the states and between the states and foreign countries.

However, immigration is not explicitly addressed in the U.S. Constitution. So what are the sources of the federal government's immigration powers?

Naturalization

Let's begin with Article 1, § 8, clause 4, of the United States Constitution, which grants Congress the power to establish a "uniform Rule of Naturalization." This means that individual states cannot bestow citizenship. That is the province of Congress alone. Remember, immigration is the process of migrating to the United States. Naturalization is the process of becoming a citizen.

Commerce Clause

The Commerce Clause, Article I, § 8, clause 3, gives Congress the power "to regulate Commerce with foreign Nations, and among the several States." Congress has the sole authority to regulate trade with foreign nations. The Commerce Clause has been used to limit the states' ability to regulate any area which touches on this area, such as taxes on immigrants or foreign nationals going through U.S. ports.

Migration and Importation Clause

The Migration and Importation Clause in Article I, § 9, clause 1, of the Constitution has also been considered a grant of power to Congress to regulate immigration. Under this clause,

Congress was given power over migration and importation after 1808. However, today some scholars interpret this clause as an attempt to bar Congress from stopping the slave trade, and nothing more.

War Power

The War Power, found in Article I, § 8, clause 11, gives Congress the authority to "declare war." The War Power clause has been used to authorize the exclusion and expulsion of enemy aliens. For example, when Congress passed the Alien and Sedition Acts, it granted this power to the President.

National Sovereignty

The Supreme Court eventually decided that the power to regulate immigration was centered on the sovereign power of a nation to determine who is permitted to enter the country and who must stay out.

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Inherent Plenary Powers

So what is national sovereignty under this framework? It relies on the idea that nations have certain inherent plenary powers. So what is "plenary power?" Plenary power is the nation's authority to act, or choose not to act, in a certain area. For purposes of immigration, plenary power means the nation has the right to take action on people arriving at its borders, without judicial review.

Chinese Exclusion Cases

The most important cases establishing the plenary powers of the United States government are the Chinese Exclusion cases of the late 19th century. At the time, the United States was grappling with what to do about Chinese immigrants, who had been imported as cheap labor during the building of the transcontinental railroads. After the railroads were built, Congress

sought to stop Chinese immigration by banning the immigration of Chinese laborers for 10 years. Chinese nationals who wanted to leave the U.S. needed a certificate to get back in. This set the stage for cases like Chae Chan Ping versus the USA.

Chae Chan Ping vs. the United States of America (1889):

Chae Chan Ping, who had lived in the United States for 12 years, obtained one of these certificates and went to China to visit family. But, right before Ping planned to return, a new law went into effect banning the return of anyone, regardless of whether they held a certificate.

The holdings of Chae Chan Ping established the "plenary power" doctrine in the context of immigration law. There are three key holdings to remember. (1) The US has the power to regulate immigration under international law. (2) The power to regulate immigration is vested in the federal not state government. And (3), the political branches of the federal government have plenary power to regulate immigration, including the power to exclude people at the border without judicial review.

Justice Fields' opinion explained that the power to regulate who comes into the country is inherent in national sovereignty. His explanation of the "rule of necessity" which means that the provisions necessary to implement a document are inherent in the document itself, is accepted as canon. This, Fields said, was not controversial. The ability to grant citizenship by necessity requires the ability to say who can become part of the community.

The upshot for Chae Chan Ping? The United States government had the power to bar him from entry into the country.

What's the takeaway from Ping and the other Chinese Exclusion cases? The plenary power doctrine went on to become the cornerstone of federal law governing both American Indian nations and external colonies such as Puerto Rico and Guam. This same plenary power is wielded by the U.S. government today in its efforts to deport and imprison certain foreign nationals without trial.

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