July 23, 2018


This month we are sharing a selection of paired pieces from The Federalist Society’s Liberty Month in July 2015. We hope you enjoy reading them. Click here to visit the paired piece for this entry.

* * *

On July 4, many Americans turn their thoughts to the Declaration of Independence and the United States Constitution, looking for wisdom to guide today’s great political controversies.  One of the key controversies dividing Americans today is immigration.  What do our Founding documents say about immigration policy? How do they allocate the power over immigration between the three branches of government?

The Declaration of Independence speaks directly on immigration.  In fact, one of the Founders’ grievances against King George was that he was limiting immigration, by trying “to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither . . .”  But when the Constitution became the law of the land more than a decade after the signing of the Declaration, immigration was a lesser issue.  The Constitution only mentions immigration once, stating that Congress has no power to limit the migration of slaves until 1808—it is silent about limiting any other migration, although it gives Congress the power to create a uniform rule of naturalization.

In the decades after the ratification of the Constitution, the Supreme Court took a leading role in determining how the immigration power would be allocated between the three branches of Government.  In the end, the Court gave “plenary power”—absolute power—over immigration to Congress and the Executive, in a judicially-created doctrine known as the “plenary power” doctrine.  Although this concept is found nowhere in the Constitution, the Supreme Court said Congress had the power to make immigration laws that were discriminatory and otherwise unfair.

In later years, the Court has also allowed Congress to delegate its immigration authority to the Executive Branch.  Congress has now given away much of its plenary power over immigration to the Executive in sweeping grants of power—more sweeping grants than in any other area of the law.  For example, Congress has delegated the power to the Executive Branch to determine whether the United States is at war such that military members can be naturalized; to determine whether foreigners should be granted temporary protected status; to determine whether a person is allowed to work in the United States; to grant a person permission to be in the U.S. when the person does not qualify for a visa; and to decide whether a person’s deportation should be deferred.

As a result of two judicially-created developments—the plenary power doctrine, and the doctrine that Congress may delegate its power to the President—the Executive Branch today enjoys expansive power over immigration.  Many people recently became upset when the Executive Branch exercised these powers delegated to it by Congress—but until Congress amends or repeals these broad grants of authority to the Executive, the President is on firm legal ground.

President Barack Obama has come under fire for using the authority granted to him by Congress and ratified by the Supreme Court’s plenary power doctrine.  He has faced a firestorm of criticism from both sides of the political aisle.  His use of his authority harkens back to an earlier Democratic President—Franklin Delano Roosevelt, who was President of the United States when the Supreme Court abandoned the non-delegation doctrine in favor of allowing Congress to cede its powers to the President.  Since FDR’s time, the balance of power in areas such as foreign affairs, national security, and immigration has tilted strongly towards the Executive Branch—with explicit and implicit authority from Congress and the gloss of history only strengthening the Executive’s power.

Like FDR, President Obama has used his executive authority in controversial ways.  His “national security” rationale for holding Central American refugees in detention camps has drawn comparisons to FDR’s often-criticized detention of Japanese residents during World War II.  President Obama has also been criticized for deferring the deportations of young people who have graduated from U.S. high schools.  And finally, he has been sued for attempting to give temporary work permits to the parents of U.S. citizen children so that those parents can work to support their families, rather than relying on public handouts.  In the end, the Court-created doctrines that have allowed his predecessors to exercise these same powers are likely to ratify his actions, however controversial and seemingly unconstitutional they may seem to the casual observer.  When it comes to immigration law and policy, the Founding documents no longer control America’s destiny—rather, the ever-evolving doctrines of the United States Supreme Court, and the dysfunction of Congress, have left the immigration power firmly in Executive hands.

Get the latest from the ARTICLE I INITIATIVE and stay in the know.