Excerpted From: Matthew J. Lindsay, The Right to Migrate, 27 Lewis & Clark Law Review 95 (2023) (194 Footnotes) (Full Document)


MatthewJLindsayAmerican immigration law exists in a constitutional netherworld--a singular, obscure realm of federal lawmaking that is mostly shielded from judicial scrutiny. When the federal government banishes a noncitizen from the country, detains her for months or years at a time, or declines her visa application without explanation, she does not enjoy the same constitutional protections to which she, as a constitutional “person,” otherwise would be entitled. The Supreme Court first endowed the “political branches” with this vast, extra-constitutional authority more than a century ago, in the Chinese Exclusion Case. There, a unanimous Court upheld a federal statute revoking the right of a Chinese resident of San Francisco to reenter the United States following a trip abroad. The U.S. Government had judged “the presence of foreigners of a different race ..., who will not assimilate with us, to be dangerous to [the nation's] peace and security,” the Court explained, and Congress's efforts to secure the nation against “foreign aggression and encroachment”--to repel the “Oriental invasion” then underway--were “conclusive upon the judiciary.” Today, *97 talk of invading foreign races has long since been purged from the Court's immigration lexicon, if not mainstream political discourse. To the extent that the Court bothers to justify its extraordinary deference to the government in immigration matters, it merely gestures perfunctorily toward immigration law's purportedly intricate connection with “basic aspects of national sovereignty, more particularly our foreign relations and the national security.” And indeed, federal legislators, executives, and courts continue to abide immigration law's constitutional liminality as though it were a natural incident of sovereign nationhood and exclusive citizenship.

Although immigration attorneys, scholars, and dissenting Justices have long decried the paucity of judicially enforceable constitutional constraints, until recently the phenomenon has not garnered broad attention. This may be because the immigration issues that typically reach the Supreme Court--the conditions triggering removal, the terms of detention, or the judicial reviewability of visa denials, for example--though legally important, generally do not involve the kinds of politically sensational questions that stir public interest. And then came Donald Trump, who forged his political brand by promising to protect the American nation against an invading foreign menace. Only extraordinary defensive measures, candidate Trump repeatedly declared--the “extreme vetting” of prospective immigrants, a 2,000- *98 mile border wall, mass deportation of unauthorized migrants, and a ban on Muslims entering the United States--would keep the barbarians at bay. Nor was this merely election-season hyperbole. After Trump won the presidency, his administration undertook an extraordinary array of immigration initiatives, headlined by legally dubious efforts to make good on his two signature campaign promises--the construction of a border wall and the enactment of a “Muslim ban.”

While Trump's unvarnished nativist demagoguery was anathema to advocates of a more humane, constitutionally constrained immigration system, it nevertheless provided a grim service of sorts by exposing judicial review in immigration cases for what it often is: an exercise in conscious disregard of arbitrary authority, deprivations of personal liberty, and illicit discrimination that, in virtually any other context, would raise grave constitutional concerns. Consider the Supreme Court's 2018 decision in Trump v. Hawaii, rejecting an Establishment Clause challenge to a presidential Proclamation excluding from the United States migrants from six Muslim-majority countries. Because the “admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control,”’ the Court observed, it would uphold the Proclamation so long as the “[e]xecutive gave a ‘facially legitimate bona fide reason’ for its action.” Accordingly, the Court squinted past abundant evidence of *99 discriminatory animus, including the President's repeated characterization of the order as a “Muslim ban,” to the Proclamation's fig leaf of national security, ultimately concluding, in a paean to judicial abnegation, that “[i]t cannot be said that it is impossible to discern a relationship to legitimate state interests or that the policy is inexplicable by anything but animus.”

How does the Court justify this yawning constitutional chasm between immigration and other fields of law? How can such “barren invocation[s]” of national sovereignty and security countenance turning a blind judicial eye to governmental conduct that would be constitutionally intolerable in virtually any other setting? While the Court no longer likens would-be immigrants to “hordes” of racially unassimilable “invaders,” it continues to account for this vast, extra-constitutional sphere of federal authority by uncritically conflating immigration regulation with national security. Although that move has acquired an aura of inevitability, even naturalness, history tells a very different story. Before the 1880s, immigration law looked a lot like plain old law. During the nation's first century--a time when the federal government was merely a junior partner in the landing and incorporation of foreign migrants--immigrants' non-citizenship was mostly incidental to the regulatory authority to which they were subject. As objects of the state police power--as potential paupers or carriers of disease, for example--immigrants were simply persons whose effect on the health, morals, and welfare of the community was, like that of all persons, native and foreign alike, subject to regulation. Even after Congress claimed control of immigration in the 1870s and 1880s and the Supreme Court rebranded foreign migrants “articles of commerce,” federal regulatory power did not distinguish between human subjects of commerce transported from a neighboring state and those transported across an ocean. The Commerce Clause, like the state police power, was indifferent to citizenship. It was only in the final decades of the 19th century that the Court distinguished immigration law from ordinary law, as foreignness came to signify not merely the absence of citizenship but a more fundamental alienation from the American constitutional community. This reconstruction of foreignness gave substance to the invasion trope and, with it, to an immigration power better suited to repelling a hostile foreign enemy than the routine governance of human beings in an era of global migration.

*100 This Article argues that history belies the Court's unexamined presumption that preserving national sovereignty and security requires that immigration law occupy a constitutional world apart. It demonstrates that during the two most critically transformative periods of U.S. political and constitutional history, when sovereign nationhood loomed largest--the Founding Era and Reconstruction--leading policymakers, diplomats, and other thinkers insisted that immigration was integral to the American project and viewed foreign migrants less as outsiders than future compatriots. For the leading congressional architects of Reconstruction, in particular, immigration was not a discrete, constitutionally exceptional subject of federal policymaking; rather, it was essential to the monumental post-Civil War project of renovating and reinvigorating American liberty, equality, and citizenship. Their efforts to reconstruct American immigration law by recognizing a universal right to migrate, guaranteeing civil equality to noncitizens, and removing the long-standing racial barrier to naturalized citizenship, allow us to glimpse an alternative constitutional and political worldview in which immigrants, though noncitizens, were nevertheless viewed as “Americans in waiting.” That was a worldview in which federal sovereignty and citizenship were paramount, yet the border between citizen and alien was both porous and transitory. Although it would be misleading to characterize this worldview as fully “representative” of the era, federal immigration policymaking in the years following the Civil War nevertheless reflected the premise that migration was a natural human right and an unambiguous national good, and that it should be governed according to the same liberal, egalitarian values that animated the broader reconstruction of the American political and constitutional order.

Part I of this Article addresses the right of migration in the period before the Civil War. It recounts how Jeffersonians, in particular, scorned what they characterized as the slavish “Old World” doctrine of organic, perpetual allegiance between sovereign and subject, and exalted the inherent human right to sever an old, unhappy political bond in favor of a new, more fruitful one. This natural right of expatriation was essential to the young nation's self-understanding as an asylum of republican liberty. Part II then explores how Reconstruction-Era statesmen, like Jeffersonians generations earlier, insisted that the natural right to cross an ocean in pursuit of a freer, more prosperous life, and to be thus absolved of one's former allegiance, was integral to America's “Second Founding.” Accordingly, Congress and the Johnson and Grant administrations pursued a concerted policy of encouraging European and Chinese immigration alike, through treaties and federal legislation. Moreover, for leading Republicans in Congress, the right to migrate entailed both a right to civil and legal equality and a right to be incorporated within the American political community. This vision received its fullest elaboration in the nearly successful 1870 campaign by Radical Republicans in the Senate to remove *101 the racial bar to naturalization, thus opening up U.S. citizenship to Chinese and other non-white foreign migrants. The Article concludes by proposing that the right to migrate championed during these two formative periods of American nation building serves as a forceful rebuttal to the ongoing presumption that preserving national sovereignty requires that immigrants occupy a constitutional world apart.

[. . .]

Long after Congress abandoned race- and nationality-based restrictions on immigration and naturalization in the mid-20th century, the Supreme Court continues to affirm that when the political branches make and enforce rules governing noncitizens, they are acting mostly beyond the reach of judicially enforceable constitutional norms. In this key respect, the immigration power of the 21st century is a direct legacy of an idea first set in judicial motion at the end of the 19th--that of foreigners as agents of incursion. The Court's predictably rote pleas of national sovereignty and security suggest a body borne along by the river of history and precedent--a river gushing from its headwaters in Chinese Exclusion down across the historical landscape; over the National Origins Quota System of the 1920s and the summary mass deportations of Operation Wetback in the 1950s; surging undeterred through the liberalizing counter-current of the Civil Rights Era; and cascading all the way down to our own era of indefinite detention, family separation, stymied asylum claims, and President Trump's Muslim ban.

To extricate itself from that river, the Court must reimagine the immigration federal immigration power's governing premise. It must reject the narrative of immigration as an incursion on American sovereignty and replace it with an alternative that is consonant with both national ideals and constitutional principle. This Article offers such an alternative, and one with a venerable historical pedigree. When the founding generation celebrated an idealized image of an American asylum, where Old World victims of religious, economic, or political oppression could begin their civic lives anew as republican citizens, they were seeding a field of American national identity that would, following the Civil War, yield a genuinely universal right to migrate to and be incorporated within the American political community. For a remarkable number of Reconstruction-Era lawmakers, diplomats, and scholars, migration was a natural human right that should be governed according to the same liberal, egalitarian values animating America's political and constitutional revolution. Theirs was a worldview in which federal sovereignty and citizenship were paramount, yet the border between citizen and alien was both porous and transitory, and in which immigrants, though noncitizens, were nevertheless regarded as “Americans in waiting.”

Any reorientation of American immigration law, whether legislative or judicial, will necessarily be informed by some thesis, or set of premises, about what immigration means for American nationhood and national identity. Will that thesis be jaundiced by the blood and soil nationalism of modern-day demagogues, with their talk of foreign “invasions,” of conspiracies to “replace” native-born voters with those *146 from the “Third World,” of border walls and travel bans? Or will it regard mass immigration, for all the very real policy challenges that it presents, as not only an inescapable corollary of modern nationhood but also an affirmation of American national identity? U.S. history offers abundant precedent for both visions. In the historical narrative presented here, immigration was encompassed within what the economist Gunnar Myrdal--like Frederick Douglass, Charles Sumner, and even Thomas Jefferson before him--famously characterized as the “American Creed” of human dignity, equality of opportunity, and inalienable rights. If the Court is to traverse the constitutional chasm between immigration law and ordinary law, the quintessentially American right to migrate must serve as an essential analytical foothold.

Associate Professor, University of Baltimore School of Law.