Reconciling Immigration and the U. S. Constitution - Part 1

What the Constitution Says About Immigration

Steven A. Carlson

6 min read

The Framework of U.S. Immigration Law

Immigration law in the United States involves a labyrinth of constitutional provisions and federal statutes. Federal oversight of immigration is addressed in the U.S. Constitution which, in Article I, Section 8, awards Congress the authority to regulate immigration. This constitutional authority underpins the development of major federal statutes, including the Immigration and Nationality Act (INA), enacted in 1952 and significantly amended over the years to address evolving immigration challenges.

While responsibility for immigration falls to Congress that does not mean that it involves only Congress. It is the role of the legislature to determine immigration statutory policy and up to the president to sign relevant legislation. Thus, it requires cooperation between the legislative and executive branches. It then rests upon the shoulders of the executive branch (the presidency) to execute those laws. For instance, Congress does not participate in deportations, etc.

In simple English, the U. S. Constitution recognizes that immigration policy is not an issue that lies within the purview of the individual states. It is seen as a purely federal matter. This is a basic principle both logically and constitutionally. The first three articles of the Constitution enumerate the limits and responsibilities of the three branches of the federal government. The 10th Amendment further confirms that the U. S. is built on a foundation of federalism. That is to say, the scope of federal authority is to be limited to those matters that demand federal involvement. All other authority and responsibility lies with the states. The amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

According to this amendment, common daily responsibilities for issues like commerce, education, law enforcement, etc., are the purview of the states. The idea is that the federal government should only be involved in those matters that necessarily reach beyond the borders of the individual state. This would include matters like interstate commerce, international relations, economic matters like the establishment of a national currency, immigration, etc. James Madison, in Federalist No. 14, wrote explicitly about the founders’ vision of a national government whose authority would be limited to those matters requiring a federal solution.

…the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.[1]

The INA (mentioned above) establishes the primary framework for U. S. immigration policies, outlining the criteria for eligibility for visas, asylum, refugee status, and pathways to permanent residency. Federal authority, as stipulated under the Constitution, grants the federal government significant control over immigration processes, allowing for a uniform approach to immigration enforcement across all states. The Department of Homeland Security (DHS), created in the aftermath of the September 11 attacks, is the chief agency responsible for managing various aspects of immigration and ensuring national security. Within DHS, agencies such as U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) play critical roles in implementing the laws pertaining to immigration. Federal regulations developed by these agencies help to shape immigration enforcement and policymaking. These regulations dictate the procedural elements concerning the issuance of visas, deportation procedures, and humanitarian protections.

Federal Government Responsibilities

The federal government of the United States is generally responsible for implementation and enforcement of immigration policy. In that vein, one of its primary roles is to ensure border security, which involves guarding the nation's borders against illegal crossings and enforcing immigration laws. This is primarily managed by agencies such as Customs and Border Protection (CBP), which works to prevent unlawful entry and trafficking across borders.

Additionally, the federal government is responsible for the admission of immigrants into the country. This process includes assessing applications for visas and issuing visas to those individuals who meet the set qualifications. This allows foreign nationals to enter the U.S. for various purposes, such as tourism, work, or education. The U.S. Citizenship and Immigration Services (USCIS) plays a key role in managing this process, evaluating applications for different visa categories, and ensuring that applicants meet the necessary criteria.

Another vital responsibility of the federal government involves deportation proceedings. When individuals are found to be in violation of immigration laws, agencies like Immigration and Customs Enforcement (ICE) take action to initiate removal proceedings. This complex process is governed by federal regulations and has significant implications for the individuals involved.

The federal government also establishes policies and programs that regulate the flow of immigration. This includes both enforcement measures and pathways for legal immigration. Such policies aim to strike a balance between national security interests and humanitarian considerations, taking into account the needs of the U.S. labor market and social considerations.

State & Local Government Impact

It is important to note that federal enforcement in immigration can create challenges at the state and local levels when federal enforcers enter those jurisdictions to fulfill their enforcement obligations. In many instances, state and local politicians and law enforcement agencies attempt to insert themselves, directly or indirectly, into immigration matters, often interfering with federal enforcement. This can lead to conflict between federal and state agencies when it comes to federal policy implementation.

From 2021 thru 2024, the borders of the United States were essentially non-existent as millions of immigrants, vastly un-vetted, poured into our country. For what appears to be primarily political motives, those immigrants were able to take refuge in several states where they were promised sanctuary from deportation. In providing sanctuary status, those states have sought to challenge federal enforcement of immigration policy.

Despite the efforts of certain state and local authorities to involve themselves in immigration policy implementation, they have no logical (this is not an intra-state matter) or constitutional (Article I, Section 8) foundation for that involvement. While some states have sought to adopt various measures that counter federal immigration law, federal laws and actions necessarily preempt state laws on this matter. Needless to say, this has resulted in considerable conflict between certain state and local jurisdictions and federal agencies when it comes to immigration governance in the United States.

Certain state governments have, to a degree, attempted to assert themselves by developing their own statutes and policies, especially concerning immigrants who have entered the U. S. through improper channels. For instance, many states have enacted legislation providing for the issuance of driver's licenses to illegal immigrants. This is true of states like California and Illinois, where they have opted to allow these individuals to obtain driver's licenses, deeming it potentially helpful for economic integration. Some states, like New York, even provide illegals free access to healthcare and educational resources. Other states have adopted more restrictive laws, which can make it challenging for those in the country illegally to access government services.

Involvement of local law enforcement agencies in immigration enforcement often differs by state. Some states have adopted cooperative agreements with federal agencies, enabling local police to assist in enforcing immigration laws. In contrast, others have implemented policies that limit local law enforcement’s cooperative role in immigration matters, thereby creating 'sanctuary' jurisdictions. Strangely, this has often awkwardly resulted in the prioritization of the immigrant population, affording them treatment and benefits that seem to outshine the treatment and benefits received by U. S. citizens in those same jurisdictions.

The federal government has responded to state-level immigration measures through various channels, including litigation and legislative action. The most significant recent efforts have seen federal courts invalidating state laws that are perceived as overreaching or preempted by federal law. For instance, in 2012, the U.S. Supreme Court ruled on portions of Arizona's SB 1070, indicating that states could not implement their immigration enforcement schemes if they conflict with federal laws. This ruling underscores the supremacy of federal regulations over state statutes in the realm of immigration.

End Part 1

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[1] Madison, James, Federalist No. 14.