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Excerpted From: Nikolas Bowie and Norah Rast, The Imaginary Immigration Clause, 120 Michigan Law Review 1419 (May, 2022) (680 Footnotes) (Full Document)

BowieAndRastThe United States is a nation of immigrants whose Constitution, ironically, doesn't mention immigration. The document has a Commerce Clause, a Taxing Clause, and even a Post Office Clause, but nothing like an Immigration Clause. To be sure, the authors of the Constitution anticipated that many new people would soon arrive in the country. They allowed Congress to tax or ban the importation of enslaved people and to establish rules for how new residents could become naturalized citizens. But while the Constitution gives the federal government many powers, it doesn't give the government any specific power to regulate immigrants.

This constitutional omission has inspired many legal controversies since 1789. Yet Supreme Court opinions over the past century have dismissed the omission as little more than a drafting error. “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” the Court wrote in 2012. The Court has considered this power so obvious, so “sovereign,” that surely the authors of the Constitution had no need to list it among Congress's powers to tax or to naturalize people. In fact, the Court has declared that “'[o]ver no conceivable subject is the legislative power of Congress more complete.’ Thus, 'in the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens.’” With this explicit blessing, a federal government that lacks judicial approval to exercise “[a]ny police power to regulate individuals as such” has exercised what might be termed a secret police power over immigrants. The government has given border agents unreviewable discretion to exclude long-term residents returning home from abroad; allowed immigration agents to raid schools and courthouses to arrest children without warrants; required employers and public officials to deny immigrants the right to work, to vote, or to collect the benefits paid for by their income taxes; and permitted group trials to summarily separate immigrants from their families.

The existence of this federal power over immigrants hasn't always been so “undoubted.” When Congress passed its first immigration law in 1798, James Madison spoke for many of the Constitution's authors when he accused the legislature of “exercis[ing] a power no where delegated to the federal government.” The law, one of the Alien and Sedition Acts, authorized the president to deport any “alien” suspected of being dangerous to national security. Madison and other critics described deportation as “among the severest of punishments,” denouncing the idea that the Constitution silently gave Congress the power to deport immigrants. “The Constitution gives to Congress no power over aliens, except that of naturalization,” they added, describing naturalization as a power that “neither authorized Congress to prohibit the migration of foreigners to any state, nor to banish them when admitted. It was a power which at most could only authorize Congress to give or withhold the right of citizenship.” Madison was joined by a “mighty wave of public opinion” that sank the Alien and Sedition Acts and swept their authors out of Congress. For the next century, many politicians and historians would recall the deportation law as “unquestionably unconstitutional.” Congress would not attempt another immigration restriction until 1875.

This Article tells the story of how, from this inauspicious beginning, Congress's power over immigration grew into its modern, undoubted form. Part I describes how for over a century after the perceived excesses of 1798, when members of Congress debated immigration laws, most members conceded that Congress was limited to tasks enumerated in the Constitution. These included the power to declare war, make treaties, naturalize citizens, protect civil rights, and, most importantly, to “regulate Commerce with foreign Nations” and make “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Part II follows Congress as it resumed regulating immigration in the nineteenth century after its members had concluded that the power to regulate “Commerce” included the power to regulate passengers on incoming ships. The Supreme Court ratified this conclusion in 1884, calling the first federal immigration restrictions “the mere incident of the regulation of commerce--of that branch of foreign commerce which is involved in immigration.”

The identification of immigrant passengers with foreign commerce proved to be a capacious source of regulatory power. When the Supreme Court first interpreted the Commerce Clause in 1824's Gibbons v. Ogden, Chief Justice Marshall wrote that it had “always been understood, [that] the sovereignty of Congress, though limited to specified objects, is plenary as to those objects.” By “limited,” Marshall meant that Congress's regulatory authority extended only to the powers conferred by the Constitution. By “plenary,” Marshall meant that if a subject involved commerce across state or national boundaries, then Congress's power over that subject “acknowledges no limitations, other than are prescribed in the constitution.” Marshall conceded that Congress might abuse its “plenary” authority to regulate commerce, but observed that “[t]he wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, ... the sole restraints on which [the people] have relied, to secure them from its abuse.” In other words, Marshall argued that voters participating in the political process--not the federal judiciary--should prevent undisciplined regulations of commerce.

In the decades after Congress and the Supreme Court extended this “plenary” regulatory power to the subject of immigration, the Court repeated Marshall's observation that electoral politics should be the only restraint on Congress's discretion. This restraint proved unbridled in practice, however, as domestic white voters increasingly urged Congress to exclude immigrants who had no countervailing influence at the polls. Nevertheless, the Court maintained that “the authority of Congress over foreign commerce and its right to control the coming of aliens into the United States” was a “complete” and “plenary power.” Most notably, in the Chinese Exclusion Case of 1889, the Court upheld Congress's power to exclude a Chinese immigrant despite preexisting treaties and statutes that promised to admit immigrants in his situation. Quoting a different Marshall opinion, the Court described Congress's powers to make treaties and regulate foreign commerce as “sovereign powers, restricted in their exercise only by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.” Because the power to exclude foreigners was “an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution,” the Court held that the powers could not be “granted away or restrained on behalf of any one,” much less a Chinese immigrant. Instead, “the last expression of the sovereign will must control.”

At the time it was decided, the Chinese Exclusion Case was regarded as a relatively unimportant decision. From the perspective of the justice who authored the opinion, the readers who first reported on it, and the judges who first cited it, the decision did little more than hold that no statute or treaty could prevent Congress from exercising its enumerated powers. The Court's use of the term “sovereignty” was no different from Marshall's use of the same language to describe the Commerce Clause and other enumerated powers. Decisions in the decades that followed the Chinese Exclusion Case continued to locate Congress's power to regulate immigration in enumerated powers like the Commerce Clause.

In the early twentieth century, however, as the historical context surrounding the 1889 decision was forgotten, the Supreme Court began to interpret the Chinese Exclusion Case differently: as a turning point in the history of Congress's immigration power. Taking the “incident of sovereignty” language out of context, the Court cited the Chinese Exclusion Case as if it held that “the power to expel or exclude aliens [w]as a fundamental sovereign attribute ... largely immune from judicial control.” Even in the context of domestic legislation, where no clause in the Constitution specifically authorized Congress to regulate immigrants, the Court imagined an Immigration Clause that gave Congress “power to order at any time the deportation of aliens whose presence in the country it deems hurtful.” By the 1970s, Congress routinely regulated immigrants in a manner untethered to any constitutional power. For the Supreme Court, it became an uncontested premise that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”

Today, judges and legal academics continue to debate the significance and the merits of the Supreme Court's “plenary power” doctrine. Yet there has long been a consensus that the doctrine began with the Chinese Exclusion Case. This consensus is mistaken: through the 1880s and 1890s, when the Chinese Exclusion Case was decided, Congress and the Supreme Court consistently tied federal immigration laws to enumerated powers like the Commerce Clause and the Necessary and Proper Clause. This mistaken interpretation of the Chinese Exclusion Case has, in turn, produced two significant ongoing effects that plague judicial opinions and constitutional scholarship.

Part III of this Article deconstructs these two effects. First, the Chinese Exclusion Case has inspired Congress and the courts to abandon both the enumerated powers and explicit constitutional limits contained in the text of the Constitution--but only when Congress regulates immigrants. When Chief Justice Marshall wrote in Gibbons that elections must provide the sole restraint on abusive legislation, he was proposing a weak theory of legislative constitutionalism. The strong version of this theory holds that in a representative democracy, it is up to voters and their elected representatives, not courts, to determine how best to interpret and apply the Constitution. In the 1880s, the Court explicitly adopted the strong version of this theory when reviewing federal legislation that regulated immigrants--leaving it up to Congress to determine the constitutional scope of federal law.

But at the same time that the Court reaffirmed this theory of legislative constitutionalism when reviewing federal regulation of people who were disenfranchised, the Court repudiated it when reviewing federal regulation of white Americans. From the fall of Reconstruction to the rise of the Lochner Era, the Court led a “counter-revolution of property,” during which it invented a host of new doctrines to prevent Congress from disrupting the autonomy of white people and capitalists who resided at the top of America's social hierarchy. It held that Congress's power to regulate commerce did not include intrastate activities outside the “stream of commerce”; that Congress's power to enact civil rights legislation did not include the power to regulate white civilians; and that Congress's power to tax did not include the power to tax the officers of states. Many of these doctrines continue to animate the judicial review of federal legislation today, on the theory that the Court must monitor the exercise of Congress's enumerated powers and ensure that all federal legislation is “necessary” and “proper” to the beneficial exercise of an enumerated power. Yet the Supreme Court has deployed the language of “sovereignty” to avoid applying these same doctrines to Congress's immigration laws. And the result is that the Court skeptically scrutinizes laws that interfere with wealthy, white, Christian voters while deferentially accepting laws that interfere with disenfranchised people.

Second, and most notably, neither Congress nor the Supreme Court has ever cogently explained the inconsistency between Congress's power over immigrants and its power to regulate citizens and businesses. Over much of the past century, a mere reference to the Chinese Exclusion Case has sufficed to explain this anomaly, on the theory that the case establishes a “sovereign” immigration power disconnected from the Constitution's text. But Justice Field's reference to “sovereignty” in the Chinese Exclusion Case cannot carry the weight of this discrepancy. And despite the Court's gestures to the contrary, any connection between our immigration laws and Congress's power to conduct foreign relations cannot justify Congress's extraordinary power over immigrants living within the United States.

In Part IV, we argue for resolving this inconsistency in favor of legislative constitutionalism. In contrast with most scholars and immigration advocates who have sought to apply the Court's ordinarily skeptical scrutiny to the immigration context, we argue that the history of federal immigration law highlights the promise of legislative solutions to the anomalies we identify. Rather than protecting disenfranchised immigrants from a hostile and overzealous Congress, judicial review of Congress's immigration law has functioned to entrench the plenary power doctrine, muffling the serious legislative debate that animated the resistance to the Alien Friends Act and the first century of U.S. immigration law. We therefore conclude that James Madison and other opponents of the first federal immigration restrictions were correct: only a “wave of public opinion” can sweep out bad laws. Rather than turn to the courts to limit federal immigration laws just as they limit federal healthcare laws, we argue that Congress itself should rethink the expanse of its immigration laws in effect today. By treating immigration as a subject over which Congress has the same power as it has over everything else-- instead of as an extraordinary exercise of sovereignty--we hope to disrupt the modern assumption, powerfully articulated by President Donald Trump, that “[a] nation without borders is not a nation.” In its place, we join Mae Ngai and other historians who have sought to “detach sovereignty and its master, the nation-state, from their claims of transcendence and to critique them as products of history.”

As a whole, this Article provides a critical legal history of a power that so pervades the modern constitutional landscape that it is often assumed to be a natural feature. The goal of the Article is to denaturalize this power and to explain, in the words of the intellectual historian Quentin Skinner, “how far the values embodied in our present way of life, and our present ways of thinking about those values, reflect a series of choices made at different times between different possible worlds.” As Skinner suggests, once we are equipped with “a broader sense of possibility, we can stand back from the intellectual commitments we have inherited and ask ourselves in a new spirit of enquiry what we should think of them.” In the same spirit, this Article contends that Congress's immigration power is less a product of principled constitutional analysis than of intentional racism and an unintentional judicial game of telephone. And because its relationship to other legal and moral norms is contingent, the present generation has an obligation to imagine alternatives.

[. . .]

Just as Native American organizers and territorial residents have long ago abandoned judicial supremacy and turned to Congress to “mitigate the artifacts of American colonialism,” advocates and legislators should encourage Congress to robustly evaluate the wisdom and constitutionality of its broad immigration laws and to disavow the idea that Congress's power to regulate immigrants is extraordinary or extraconstitutional. Inspired by the Democratic-Republican resistance to the Alien Friends Act, Congress should return to carefully considering the constitutional source of its power to regulate immigrants; assess the political and legal consequences of grounding its laws in any particular provision of Article I; and enact more robust civil rights protections for immigrants under its broad power to regulate interstate commerce.

As Mark Tushnet has written of Thomas Jefferson's opposition to the Alien Friends Act, “Jefferson was a smart man and, for his times, a real democrat. He did not place his hopes in the Supreme Court.” Instead, Jefferson helped to organize ordinary people to restore the government to “its true principles.” Reimagining Congress's immigration power today will similarly happen not with new legal arguments, but only with a new “wave of public opinion.”

Assistant Professor of Law, Harvard Law School.

J.D., May 2021, Harvard Law School.

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