The battle over U.S. immigration policy has raged on, albeit in varying levels of intensity, for the majority of our nation’s existence. From the Alien and Sedition Acts of 1798 to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress has wrestled with the issue of how to regulate the flow of immigrants into the country. Unfortunately, this struggle has often (if not always) been underscored by hostility and animus toward the prevailing immigrant group of a particular era. As an article published in The Atlantic describes, “[t]here was a time in America when the Irish were characterized as apes, Italians as street filth, and Chinese as parasitic locusts.” These characterizations continue to cast a dark shadow on the history of the United States.

Centering his candidacy and presidency on restricting the flow of immigrants, President Trump has ripped opened a new chapter in America’s struggle with immigration policy. This time, however, the animus and hostility has been directed largely toward Hispanic immigrants. In particular,he has identified Mexican immigrants as: “…people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.…” This animus has also been directed toward Muslim immigrants, with candidate Trump threatening a “complete shutdown of Muslims entering the United States….”

President Trump’s attitude toward immigration has been meet with sharp criticism, sparking a highly motivated opposition movement. But, with Republicans controlling both the House and the Senate, these opponents have limited options at the federal level. Thus, many have relied on Democrat-controlled states to act as a bulwark against the Trump Administration’s immigration efforts. For example, Hawaii challenged Trump’s “Muslim Ban” Executive Orderin court with the support of amicus briefs from several other states. Additionally, California passed legislation that allows local jurisdictions to ignore federal immigration orders. But, are these state-based strategies legally sound?

This two-part blog seeks to briefly trace the origins of modern immigration law, examine the failure of state-based immigration policies during the Obama administration, and predict the likelihood of success for state resistance against Trump’s crackdown on immigration.

 Who Determines Immigration Law?

The answer to who controls immigration law, or at least who should control immigration law in our federalist system, is far fuzzier than the casual political observer would likely believe. This is because the Constitution says very little about immigration. While one would expect the Constitution to enumerate whether immigration power lies with Congress, the States, or the Executive Branch, it does not expressly do so.

Instead, the courts have had to rely on two relevant provisions of the Constitution in determining who has authority over immigration. First, Article 1 Section 8 Clause 4 grants Congress the power to create a uniform law of naturalization. However, controlling naturalization means control over how noncitizens become citizens, not necessarily over who is able to permanently or temporarily immigrate here. Second, Article 1 Section 8 Clause 3 of the Constitution grants Congress the power to “regulate commerce with foreign nations and among the several states.…” But, is regulating commerce a license to regulate the flow of foreign people? This interpretation appears strained.

The Supreme Court laid an early foundation for Congressional control over immigration law in the Passenger and Head Money Cases, respectively finding that the regulation of which passengers could be admitted from a vessel belonged to Congress, and that states could not impose a head tax on admitted immigrants. The Court reasoned that these powers belonged solely to Congress because of the potential for state interference with foreign commerce.

Subsequently, the Court took a pivotal step toward confirming the Federal Government’s control over immigration around the close of the 19^th Century. Here, the Court largely abandoned its rather attenuated reliance on express Constitutional language. First, in Chae Chan Ping v. the United States, the Court upheld Congress’s power to deny immigrants entry into the country “at any time.” In its decision, the Court articulated that the national government has control over immigration due to an unenumerated power that is inherent in its sovereignty. The Court upheld this rationale four years later in 1893 when it decided Fong Yue Ting v. United States, stating that “[t]he right to exclude or expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace…[is] an inherent inalienable right of every sovereign and independent nation.…”

This doctrine of plenary federal power over immigration remains a bedrock of Supreme Court jurisprudence. In more recent times, this concept has emerged in cases that deal with the conditioning of welfare benefits to noncitizens. While the Court applied strict scrutiny to strike down state-based legislation which conditioned a noncitizen’s receipt of welfare benefits on their length of residency, it applied mere rationale basis review to federal legislation which did the exact same. Here, the court emphasized that it had a more “narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.”

Failure of State-Based Immigration Legislation During Barack Obama’s Presidency

 While the Court has substantially entrenched Congress’s and the President’s power over immigration, the gray area created by the lack of an express Constitutional directive has invited States to test whether they retain any power. This is especially true when a State’s ideology has clashed with the President’s. For example, when Arizona’s conservative state legislature became dismayed at the lack of federal progress against illegal immigration and angry over President Obama’s support of the proposed Dream Act, it retaliated by passing Arizona State Bill 1070.

This statute (1) made failure to comply with federal alien-registration requirements a state misdemeanor (2) made it a misdemeanor for an unauthorized alien to seek or engage in work within the state (3) authorized law enforcement to arrest, without a warrant, a person the officer has probable cause to believe has committed any public offense that makes the person deportable and (4) required officers who conduct a stop, detention, or arrest to attempt to verify the person’s immigration status with the federal government.

 Arizona argued that S.B. 1070 only created mechanisms to enforce federal immigration law and that these measures were necessary to protect this border state from the harmful effects of mass immigration. Opponents challenged this legislation and the resulting decision in Arizona v. United States further eroded state control over immigration.

While the dissent argued that the lack of Constitutional clarity allowed States to retain a degree of their own sovereign power over immigration, the majority disagreed, striking down most of Arizona’s law. Here, the Court reaffirmed the Federal Government’s broad power over immigration, stating that it is important for the sovereign power to set a uniform immigration policy, partly due to its control over foreign relations. This reasoning implicates the Supremacy Clause of Article 6 of the Constitution, thereby subordinating the States’ authority. Thus, the Court concluded that Arizona’s legislation was preempted by federal authority because Congress and the President regulate or control immigration to an extent that prohibits State action.

Ultimately, the Court has embarked upon a 200-year doctrinal journey, entrenching immigration authority firmly with the Federal Government. Next, Part Two will explore how Trump’s opponents are challenging his immigration policies from outside the Federal Government and the likelihood of success given the challenging legal landscape established by the Court.

 

Suggested citation: Zach Espinoza, Immigration Struggle: Can States Resist Trump on Immigration?, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Oct. 26, 2018), http://jlpp.org/blogzine/immigration-struggle-can-states-resist-trump-on-immigration/.