One of the hallmarks of Trumpism is the increasingly intense dialogue surrounding immigration, ushering in a wave of xenophobia and a brighter distinction between “them” and “us”. Although the Federal Government has mobilized this sentiment in the form of immigration restriction, it is unclear whether or not the Constitution explicitly bestows this authority. This article will examine the extent to which the enumerated and implied powers of both Congress and the Executive branch grants them the power to control immigration. It seems like that the precedent set by the Trump Administration, in particular, is at odds with what the Founding Fathers had in mind when they constructed this nation as the “great American melting pot”.
There are two points of reference in the Constitution that give a slimmer of hope in finding a promulgated Federal authority over restricting immigration. In Article 1 Section 8, power is granted through the phrase “To establish an uniform Rule of Naturalization”. However, naturalization is a process that concerns those residents who are becoming American citizens; this simply cannot be interpreted to apply to aliens. In other words, the power to determine eligibility for naturalization is obviously not the same thing as a power to forbid immigration.
Second, the first paragraph of Article 1 Section 9 states that “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” The argument here is that since the Federal government is banned from prohibiting immigration until 1808, it must be true that the ban is lifted after that year. This is an abysmal logical fallacy, insofar as the conclusion is made valid on the assumption that the opposite is true.
The Constitution is clearly not a set of laws pertaining to individuals, but is rather a guideline for the federal government, which does not have an inalienable right to liberty. On the contrary, the Constitution is written on the assumption the federal government has no power not delegated to it. The Tenth Amendment was ratified to ensure that point was driven home. Therefore, just because certain powers are prohibited to the federal government by one or another clause of the Constitution, one cannot assume that any power not prohibited is granted. Only powers explicitly delegated are within the federal government’s purview.