Immigrant Rights in the Shadows of Citizenship

12. Who Should Manage Immigration — Congress or the States? An Introduction to Constitutional Immigration Law

286 chapter 12 Who Should Manage Immigration— Congress or the States? An Introduction to Constitutional Immigration Law Victor C. Romero The Federal-State Divide over Immigration Power Scanning today’s headlines, airwaves, and weblogs, it’s easy to conclude that the United States is in a fairly anti-immigrant mood. From new federal laws authorizing the creation of a 700-mile border fence to increased security at airports and seaports, from calls for fewer immigrant visas to crackdowns on undocumented workers, Americans are clamoring for the president and Congress to prioritize comprehensive immigration reform. Yet, in small towns and some states around the country, a growing number of local governments are no longer willing to wait for the federal government to act. Places like Gaithersburg, Maryland, and Hazleton, Pennsylvania, are Who Should Manage Immigration—Congress or the States? 287 formulating their own solutions to the age-old problem of how to balance the needs of their communities against the desire to welcome and assimilate productive newcomers. Often, these local governments have drawn the line at legal immigration , arguing that residents without the proper documentation have no right to be in the United States and, accordingly, have no right to live and work in their communities; opponents argue that immigration laws are the exclusive province of the federal, not local, government, and that these anti-immigration ordinances are little more than a modern form of racial profiling against a demographic that has become increasingly Latin American in flavor. Given that noncitizens immigrate to the United States and yet settle in specific local communities, which government—federal or state—should be in charge of regulating this ebb and flow of people? Assuming that both national and local entities have a role to play, whose policies prevail should there be a disagreement between the two? Constitutional Immigration Law and the Federal-State Divide For constitutional lawyers, two primary sources of the authority of the government are the text of the Constitution and the decisions of the U.S. Supreme Court interpreting that text.1 In this introduction to “constitutional immigration law,” I explore both of these sources in an attempt to discern the powers of the federal and state governments over noncitizens. The Text of the Constitution The text of our Constitution has something to say about immigration (when noncitizens may enter the United States and when they must leave) and citizenship (who gets to be a U.S. citizen), although what it says is not entirely clear, nor does it specify how national laws regarding migrants coexist with local laws affecting the same. On the one hand, Article I, which outlines the powers of the federal lawmaking body, Congress, appears to include some power over foreigners. Article I, Section 8, Clause 4 authorizes Congress to create a “uniform Rule of Naturalization,” establishing 288 Victor C. Romero that the House and Senate are responsible for drafting laws that allow qualified noncitizens to attain full U.S. citizenship.2 Yet, aside from references to the “migration and importation” of slaves,3 the Constitution says nothing about congressional power to regulate the voluntary movement of noncitizens into and out of the country, which is at the heart of immigration law.4 On the other hand, the Constitution says even less about the power of the states over noncitizens and, indeed, appears to limit their power. The Thirteenth, Fourteenth, and Fifteenth Amendments—the so-called post– Civil War Amendments—were originally intended to ensure equal treatment of the newly freed slaves, but, by their terms, guarantee rights to all “persons.” Specifically, the Fourteenth Amendment provides that “no State . . . shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” For instance, a state may not incarcerate a foreign national without first giving her a fair trial (due process), nor may it punish her just because she’s from another country (equal protection). The Framers could have limited rights against state encroachment to U.S. citizens only but instead chose to extend these to all persons. In addition, these same due process and equal protection rights have been read to restrict the federal government just as they do the states.5 In sum, even though Congress has the power to create rules governing citizenship, the text of the Constitution does not explicitly give it authority to regulate immigration...