Drawing on each reading, try – in your own words – to describe the constitutional powers of Congress and the President on questions of immigration and citizenship. (For instance, are these powers broad or narrow? How, if at all, are they constrained?)
Week 14: Immigration and Citizenship
Published
Constitutional Law (Powers) Spring 2019 
Immigration , a key issue of the current administration with it comes the question of what power does congress and the President have in controlling immigration and regulating citizenship. Congress’s power to regulate citizenship can be traced back to the China Exclusion cases, where the Supreme Court ruled that the congress has the power to stop chinese nationals from entering this country citing the plenary power doctrine. The plenary power doctrine grants congress very broad powers on the treatment of aliens in this country. In some cases the Supreme Court can fall into article 3 “public rights doctrine” , which can divert immigration disputes to the executive branch. This exception now gives the broad powers of the legislative branch to the the President. The naturalization clause in Article 1 seems to check the powers of congress when it comes to citizenship, it does not give specific narrow guidelines when establishing citizenships. Instead it leaves it all up to Congress, this adds to the debate because the constitution offers a very broad range of powers to congress and the president.
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This is great, Sarah – thanks. You are right that the powers are quite broad. One small correction I’d make is that the public rights exception is transferring power from the judiciary to the executive, rather than from the legislature. This is because the courts are not classic “article 3” tribunals with judges who go through the confirmation process, have life-time tenure, etc.
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The early Republic had given Congress broad powers to define and regulate naturalization. At the time, naturalization requirement was based on two factors, the trans-Atlantic migration and the rules of property ownership. After the revolution, the newly independent states had nearly complete autonomy to determine who they wanted to grant citizenship rights. The Framers to avoid contention among the states regarding the naturalization issue concluded that a national government ought to have complete control over naturalization and immigration. Thus, giving the federal government broad power over immigration and citizenship. This broad power is, however, divided among the branches of government.
This division then gives congress and the president narrow powers. The plenary power doctrine was originated in 1880s after the CHINESE EXCLUSION CASE, in which the Court had concluded that congress had inhibited power over immigration. The Court had ruled that immigrants were seemly left at the mercy of Congress—but all citizens are at the mercy Congress. This power is not absolute, however. The constitutional norm limits this power. In INS v ST CYR, Justice Stevens wrote that Congress can’t strip the Court from their jurisdiction over immigrants. Furthermore, in INS v. CHADHA, the Court ruled that Congress does not have complete power to regulate individual immigration cases. The application of immigration laws seems to be left to the President and the Courts.
In class, we have discussed how the Supreme Court is relatively less powerful mainly because they don’t have the power to literally enforce their decisions. Nevertheless, it appears that in immigration, Congress is powerless. The enforcement of their laws is left to the Executive and the Judicial branches of government.
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Great summary, Luis. The final paragraph is interesting because it suggests that Congress is actually quite weak. This is seemingly at odds with the plenary power doctrine, and the Court’s pronouncements that the legislature has a major role here. Perhaps you are alluding to the overall failure of Congress – certainly in recent years – to take the lead on immigration policy/reform. If so, this is an interesting observation: similar, in some ways, to your arguments about the war powers: on paper, Congress is supreme; but in practice, it’s increasingly useless
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Immigration law has been a highly politicized issue throughout American history, with arguments stemming from the original intention of the founders and the interpretation of the constitution for its lack in clarifying a constitutional position on immigration.Warden and Pfander acknowledged the view of many scholars in communicating the poor effectiveness of the plenary power doctrine as a framework for immigration constitutionalism. The doctrine gives absolute power on a particular issue with no limitations. It has been used as presidential pardons for inmates in prison and as a tool for immigration ruling. Congress has understood these powers as a means to use a process of barring individuals into the country, the Chinese Exclusion Act is a prime example of the power as a means to prevent entry of a certain group based on both class and racial tendencies. It also good to note the court’s interpretation of immigration provisions falling under Article III of constitution but leaves the law in limbo. There is no structure of understating who can mandate immigration policy and whether the laws are subject to change drastically. This bureaucratic model has left politicians themselves not understanding where they can enforce themselves. The broadness of the law has left it up to individuals to advocate on behalf of immigrant families and the court ruling on Trump travel bans vary from court to court leaving it to moral/ideological interpretation. It is sad to say but due to no constitutional premise on such an issue, immigration ruling is a political game for many. The power of immigration laws is left solely to publisher as their are no provisions to construct immigration law according to constitutional. The separation of families shows that government can do what it pleases without a consensus on whether they should be doing such actions. The sanctuary city argument is in itself a contradiction in politics, with no real safe haven from the federal government. The President as commander in chief can use immigration officers how ever he may please and the only objective voice was the Supreme Court, only preventing certain provisions of the ban and remedying it for a re submission to become law.
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This is nicely put, Jorge. I think the consistent theme here seems to be that there is a lack of clarity on what the law or the constitution actually says. This, then, raises a few questions. First, who do we blame for this? Maybe the framers! Second, what would good constitutional standards look like? And third, which branch(es) of government should work to establish these standards? Not too long ago (2014, really) Congress looked like it might take the lead with the DREAM Act, but this fell apart. Maybe immigration will come back on the legislative agenda after 2020
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The current battle between “sanctuary cities” and a national government who is hell-bent on restricting the entrance of immigrants, and removing those who are already here, has shed light upon an issue that has been at the heart of American politics for well over one hundred years. Since the introduction of The Plenary Power Doctrine immigration policy has become nationalized, but predating that the individual states had control over the flow of individuals through their state. The short answer to the prompt is that Congress and the President have ultimate control over issues of immigration and citizenship. The Supreme Court will weigh in from time to time, as they are want to do on any given topic, but particularly the President has near unchecked power regarding immigration and citizenship.
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I think your concise answer is pretty much on the money, Adam. The question that we’ll explore further in class (maybe two questions) would be: What are the limits on Congressional and Executive power? And what limits *should* there be (if any) on such power? Sanctuary cities are a can of worms we’ll open on Thursday
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On questions of immigration and citizenship, Congress, under the Plenary Power Doctrine has the power to make immigration policy subject to judicial oversight The President’s constitutional powers on such matters are stated in Article II of the Constitution which grants authority to the president to conduct foreign affairs and address immigration.
The way I see it in regards to immigration law based on our readings, of course the Supreme Court found Trump’s Executive Order legal. Constitutional protections against a state action protect US Citizens anywhere in the world and protect anyone on US Soil. Non-resident aliens in foreign countries do not have Constitutional protections. The ruling is fine, however, except for the fact that a law that legitimizes unlawful discrimination is itself unlawful. A law cannot violate the constitution, which is very clear regarding religious, ethnic or racial discrimination. President Trump’s travel ban was indeed a Muslim ban which is discriminatory and unconstitutional.
The Supreme Court ruling that had sided with the President’s immigration ban was racist and immoral. The Court’s decision showed clearly how they abandoned their sacred responsibility to check the power of the President and uphold the constitution with the utmost importance. It’s times like these where Congress must stand up and overturn the Supreme Court’s travel ban ruling.
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This is a good critique of Trump v Hawaii, Tina. But, in some sense, the critique contradicts the point about non-resident aliens having no Constitutional protections. Maybe non-resident aliens have some protections, or maybe there’s a more general argument here about the spirit/idea that the travel ban embodies. Hard to say. In any event, it’s worth remembering that the Bill of Rights says nothing about citizenship, which might be an interesting point…
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Based on the “Early Immigration Constitution” and “The Supreme Court Travel Ban Union” readings, Congress and the President obtain certain Constitutional powers in regards to the immigration and citizenship questions. The Constitutional powers of Congress for immigration/citizenship is that they have the power to regulate entry. In other words, they have power to decide who can acquire a naturalized citizenship and on what kind of circumstances they can do so. The congress constitutional power of immigration policies, stems from the Plenary Power Doctrine, and they develop/pass legislations to the president. This leads to the President’s constitutional power, in which after congress has passed the legislation to them, then they sign them into law. More specifically with the topic of immigration and citizenship the president has power to reject all “aliens or any class of aliens” if he believes that this entry can be a threat to the United States. The constitutional powers of the Congress seem broadly defined, in terms of their stated potential authority. But how they legislate seems narrow since there is a process, and it may be restricted. The constitutional powers of the president seem broadly defined because since they have the power to suspend entry of who they believe is a threat, they may not even have adequate reasoning for this which can be open to interpretation.
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Despite appearing to be a politically biased ruling, the majority opinion in Trump v. Hawaii seems to be based on solid judicial grounds whereas the dissenting opinions appear more politically motivated. First, there is no Constitutional guarantee of immigration, nor are there constitutional limits on the power of Congress nor the President to legislate/implement immigration. Of course, there is no explicit delegation of immigration powers, only the power for Congress to implement a standard for naturalization. There is a dubious claim to Congressional power to legislate immigration as immigration is only one aspect of naturalization – one can immigrate without becoming naturalized, but one cannot naturalize without properly immigrating.
The Court’s opinion therefore was brought under the INA and Establishment Clause. As Roberts’ opinion found, there are no limits on Presidential power to determine specific states as off limits for immigration – the use of National Security was, it appears, entirely unnecessary as a reason to implement the EO, although the Court found its reasoning to be justified given previous precedent.
And the argument under the Establishment Clause, while perhaps a spurious decision by Roberts given Trump, et al. comments and tweets (official statements) regarding the purpose of the ban, was still not an inaccurate decision. In fact, the Establishment Clause limits only the Congress, not the President. The link between the President exercising power provided by Congress through the INA is therefore where the plaintiffs raise the EC. This gets dicey – is Presidential execution of Congressionally approved power subject to EC restrictions? Despite tackling that landmine, the real question is: “despite Trump’s claims that the ban is on muslims, does it serve a valid national security purpose?” and in this the court found that, given the preponderence of government agencies accepting that these foreign states do impose a threat (state support of terrorism, state antagonism towards the US, et al), there was a legitimate national security threat.
Those who wished to overturn the EO should have brought better arguments. There may be legitimate reasons to overturn the EO based on racism (perhaps the 14th amendment would have been more applicable) and religious discrimination, but the plaintiffs failed to bring these arguments properly. Nor the dissenting judges raise these issues more appropriately. Rather, the dissenting justices reverted to a hail-mary in comparing refusing VISA applications to state internment.
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This is a very solid judicial argument, John – thanks. What do you make of Justice Sotomayor’s other claim (I think, by the way, you’re correct that the internment analogy is a stretch) that national security cannot be a hail-mary for the president? In the Pentagon Papers Case, for instance, the Court was quite clear that the executive branch can’t just say “national security” when it felt threatened. Indeed, this also strongly suggested that the executive branch was bound by the first amendment.
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In Pfander and Warden’s Article, Congress’s constitutional powers relating to immigration and citizens are outlined: Congress can determine who can become naturalized citizens and the requirements for such and who can enter the U.S. to seek citizenship or legal status. These powers seem especially broad since Congress has little restraint in its decisions. While the Supreme Court has allowed for “aliens” to exercise their right to judicial review, it still doesn’t eliminate the fact that Congress get to first, determine who are “aliens”, and second, who has a rightful stay in the country. Further, just because an immigrant has a right to judicial review, doesn’t mean after their case is reviewed they will be granted citizenship or legal status, so in the end, Congress seems to have little restraint on the question of immigration and citizenship.
The President’s power in regard to citizenship and immigration seem to be broader. In terms of immigration, under the Immigration and Nationality Act (INA), she/he “suspend the entry of all aliens or any class of aliens” if he “finds” that entry “would be detrimental to the interests of the United States.” While the supreme court can examine if the President acted within his constitutional bounds, it does seem appalling that President singlehandedly has so much power over immigration matters. Especially given the fact that if his decisions are not challenged in the Courts then his decision will stand without a challenge and even if it is challenged there’s a chance it will still stand.
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The Constitutional powers between the President and Congress on Immigration and Citizenship I believe to be broad because sometimes you have no idea who really have control. When it comes to immigration, the President can say these people of ethnic background are bad people based off a few bad apples or you can say that these people are bad without having any evidence if they have done something wrong the causing a ban on people from entering the country. The Congress would have little say sometimes because if the President does an executive order then they can not fight and only fight it with the Supreme Court. Immigration is hard when you live in a nation that was based off immigrates that is to say to ban people from coming another country to find safety because their country is attacked their people.
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The Constitutional powers between the President and Congress on Immigration and Citizenship I believe to be broad because sometimes you have no idea who really have control. When it comes to immigration, the President can say these people of ethnic background are bad people based off a few bad apples or you can say that these people are bad without having any evidence if they have done something wrong the causing a ban on people from entering the country. The Congress would have little say sometimes because if the President does an executive order then they can not fight and only fight it with the Supreme Court. Immigration is hard when you live in a nation that was based off immigrates that is to say to ban people from coming another country to find safety because their country is attacked their people.
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Immigration has been a pressing matter throughout the history of the United States; if anything, United States history is most definitely grounded in this notion of immigration. It is something this country loves to idealize and hate simultaneously, the latter especially when it comes to particular groups that may not conform to white, Anglo-Saxon, protestant views or appearances.
That being said, when we look throughout the course of the history of immigration and the federal government’s intersections with it, we can gauge the level of authority vested in each federal branch regarding questions of immigration and their respective constitutionality. This is evident with Supreme Court rulings. In very recent times, the Supreme Court ruled in favor of the Trump administration in their ban of foreign nationals from majority-Muslim countries. In doing so, the court acknowledged the anti-Muslim rhetoric of the President, but deemed it not its place to “‘to denounce the statements’ but to determine ‘the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility’” (Hurd, Schwartz).
With the majority opinion and concurring opinions laid out with this ruling, the Supreme Court effectively gives a great deal of leeway and flexibility for the executive to impose such barriers to travel and immigration to varied groups. Following the Immigration and National Act, Justice Thomas claimed that the act does not provide any “judicially enforceable limits that constrain the President,” and that the president has an “inherent authority to exclude aliens from the country.” This is incredibly wide in its scope of power, and provides the executive with ample authority to take immigration matters into his own hands, if there is not effective judicial constrains, and if the Supreme Court finds no qualms nor direct correlation with the President’s malicious xenophobic and racist rhetoric with his policies.
In regards to the thus-far unspoken branch of the federal government, Congress has a great deal of authority as well. Historically, the Supreme Court has given constitutional basis for Congressional restriction of foreign nationals (see: Chinese Exclusion Act of 1882). With the plenary power doctrine, the Court expanded Congressional authority regarding deportations as well as general treatment of non-citizens.
In “Reclaiming the Immigration Constitution of the Early Republic,” Congress from the get-go was given broad power to design immigration policy, albeit slight limitations that ask for transparency and uniformity. Congress is vested with the power to “establish a uniform rule of naturalization” and so with Congress, we see more so immigration policy grounded in precedent and a tradition of procedure, considerably more constrained than the executive.
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I am completely confused about the information on immigration because of how Congress and the President view it.
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I believe the President’s power on immigration is broad when referring to §1182(f) of the INA because the President could deny entry to the country to essentially anyone for any reason, with the excuse that allowing entry “would be detrimental to the interests of the United States.” In this statute, it is so broad that the President does not need to explain why he believes that the denial is necessary to protect the U.S. There is also no limit to how long Trump can uphold his ban, only until his initial problem is resolved. The President is limited when it comes to issuing visas since applicants can not be discriminated against. Even Justice Thomas acknowledged that the President can not be constrained when it comes to the Immigration and Nationality act because he can essentially excluded anyone since the constitution only applies to those in the U.S. and he is excluding aliens over sea. The Chinese Exclusion Act and the travel ban (Muslim Ban) were both essentially classified as a security risk and with that being so, the President was not constrained when making the decision to deny them entry. Overall, when it comes to immigration the president has broad powers but when it comes to citizenship and allowing visas, it is a little more narrow in the sense that there can be no discrimination but there have been less visas given to those seeking asylum.
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The constitutional power of the President and Congress in regards to immigration and citizenship is mostly derived from Article 3, the Establishment Clause. The President also derives his immigration power from the Immigration and Nationality Act (INA). Overall, these two branches have broad powers in regards to immigration and citizenship. As described by Pfander and Wardon, “Congress enjoys what the Supreme Court has sometimes described as essentially unfettered power over the treatment of aliens”. While immigration and citizenship has been an issue since the forming of the United States, there is no definitive immigration clause found in the Constitution. The Judiciary branch is one way in which these powers can be constrained but that is if the Supreme Court decides to hear or rule on certain aspects of the laws created.
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In the Virginia Law Review reading,Congress seemed to have free reigns with naturalization and immigration. Because of these free reigns, they were able to legislate and show biases with who they allowed to come into the country. People of color, of course, had much more of a limited access when migrating to this country. In the Lawfare, the Supreme Court, while adhering to the Constitution, showcased more authority when dealing with immigration.
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Based on the readings, it seems like the federal government’s powers over naturalization, citizenship, and immigration are fairly broad. There are some constraints that Congress places on itself and the executive, but there is nothing in the Constitution that constrains Congress from taking a certain action in regards to immigration. The Supreme Court has upheld what the reading calls “an essentially unfettered power over the treatment of Aliens.” When the Supreme Court ruled in certain cases that the Aliens are entitled to some sort of due process, they did not cite any specific lines from the Constitution. Rather it seems like the Court wanted to uphold some basic moral principle that they believe the Constitution creates and apply that principle to Aliens in order to avoid conflicting beliefs. The principle that all are entitled to a fair day in court before they are punished is a moral belief that most Americans hold. Regardless if the Constitution forces Congress or the Supreme Court to hold trials before deportation, some people believe that in order to protect fair trials for American citizens, it should be extended to those who are not citizens.
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The article mentions that in the 1790s in fact was when the founding fathers wanted Congress to have broad powers for immigration policy as long a sit abided the norms of prospectivity, uniformity and transparency teamed up with the naturalization clause backs the congress’s position in immigration policy. Also, during this time Congress also was to determine what types of people came to the U.S. Additionally, under Article 3 Congress has the power to allow non-article 3 tribunals to adjudicate and resolve disputes between individuals and federal government. Furthermore, if Congress wanted it could authorize to sign the education of immigration matters to executive agencies and prevent agency decisions from judicial review. Moreover, the President’s power is narrow in the sense that their power is backed by the courts so it isn’t like he/she can expand his powers. Yet, it seems that the president doesn’t always have to explain himself.
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The constitutional powers of Congress on questions of immigration and citizenship are to define who can attain naturalized citizenship and regulate entry into the country. These powers are broad as the plenary power doctrine allows Congress to choose which rights can be granted or withheld from immigrants. The courts are one way that congressional power over immigration can be constrained. In the case of Immigration and Naturalization Service v. St. Cyr, it was established that immigrants are entitled to judicial review. Similar to the legislative branch, the President’s power in regard to immigration is broad and the courts serve as a mechanism to check on the executive. As the Trump Administration put forth Proclamation No. 9645, the federal district court in Hawaii found that the proclamation violated the Immigration and Nationality Act. Ultimately, the Supreme Court ruled that the President did not exceed his authority. Nonetheless, the courts do have the opportunity to determine whether the actions of the President and Congress surrounding immigration are within their bounds.
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The doctrine implies that Congress has broad power when it comes to immigration and naturalization. Like Congress, the president as-well has no authority when it comes to having power in restricting immigration. But does have the ability to restrict the entry of foreigners into the country as a loophole.
In Articles I and II of the Constitution, the power to restrict immigration is not listed as the framers of the constitution were in fact for immigration to increase the population of the country.
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The constitutional powers of Congress and the President on questions of immigration are relatively broad. The Plenary power doctrine allows Congress to deport previously admitted aliens and the Supreme Court has described this as Congress enjoying unrestricted power over the treatment of aliens. Laws being broad allowed for something like this to be possible. “Congress exercised broad power over immigration law, not all of them are welcome. To begin with, Congress exercised broad power to define which classes of persons were entitled to citizenship. In 1970 Congress limited naturalized citizenship to “free white person(s) thereby excluding persons of color” Mainly, Presidential powers are not very constrained because he has the power to pass executive orders like the Travel Ban. The travel ban targeted Muslim countries even though many presidents have expressed “religious tolerance.”
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When discussing the topic of constitutional powers of Congress and the President on immigration and citizenship, it has to be seen from a broad perspective for Congress and narrow perspective for the President. For example, when looking at the powers of Congress, it can be seen how they play a role in citizenship by restricting access to Chinese nationals. Specifically, in this case it shows how Congress exercises its power to control immigration through control of boarders as a “inherent incident of sovereignty under the law of nations”. The Courts involvement also provided Congress with a more encompassing influence on deportation. When looking at the Presidency, we can see the power of legislative holding greater influence and the President also having the power to check what Congress does on such topics of immigration and citizenship. Furthermore, the President also the ability to voice the Court and has influence on bans. From this perspective it seems that Congress has a broader approach of power because of the influence they have and have gained from the courts while the President has a more narrow and limited pinpointed scale of power.
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