Federal Immigration Power

Article I, Section 8, clause 4 of the Con­stitution entrusts the federal legislative branch with the power to “establish an uniform Rule of Naturalization.” This clear textual command for uniformity establishes that the federal government, specifically Congress, is responsible for crafting the laws that determine how and when noncitizens can become nat­uralized citizens of the United States. But control over naturalization does not necessarily require full control over immigration. And indeed, for the first century of the United States’ existence, many states enacted laws regulating and controlling immigration into their own borders. Various states passed laws aimed at preventing a variety of populations from entering the borders of their states, including individuals with criminal records, people reliant on public assistance, slaves, and free blacks.

It was not until the late 19th centu­ry that Congress began to actively reg­ulate immigration, in particular, with measures designed to restrict Chinese immigration. By this time, the Supreme Court had begun to articulate clear limits on state immigration powers. In 1849, with the Passenger Cases, the Supreme Court struck down efforts by New York and Massachusetts to impose a head tax on incoming immigrants. Four justices concluded that such taxes usurped congressional power to regu­late commerce under Article I, Section 8, clause 3 of the Constitution. A unan­imous court applied the same rationale in 1876, striking down a New York state statute taxing immigrants on incoming vessels in Henderson v. Mayor of New York. A few years later, in 1884, with a decision in the Head Money Cases, the Court for the first time upheld a federal regulation of immigration, also on Com­merce Clause grounds.

From that time on, the Court upheld federal immigration regula­tions against constitutional challenges, although the underlying rationale shift­ed. With the Chinese Exclusion Case in 1889, the Court began issuing a series of decisions in which it treated con­gressional power over the regulation of immigration as a virtually unreview­able, plenary power. The Court upheld congressional immigration laws and executive enforcement of those laws against a series of challenges, in spite of their patently discriminatory nature and lack of due process guarantees for non­citizens. The Court repeatedly suggest­ed that this federal power flowed from the federal government’s prerogative to control foreign affairs.

From the late 19th century through the present day, the Supreme Court has upheld almost every federal immigra­tion regulation against constitutional challenge, citing Congress’s plenary power in this area. As Justice Kennedy wrote in the 2012 decision in Arizona v. United States:

The Government of the Unit­ed States has broad, undoubted power over the subject of immi­gration and the status of aliens. … This authority rests, in part, on the National Government’s con­stitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations….