Whose job Is it anyway?

What constitutional authority does the president have over immigration policy? In the United States, we live in a government system that political scientist Richard Neustadt has described as “separate institutions sharing powers.” Having repudiated the authoritarian rule of King George III, the framers attempted to create a government that would control itself from abusing individual rights. That impetus was enshrined in the U.S. Constitution, which creates a system of checks and balances and institutional power sharing. A fear that the concentration of authority would lead to abuses and erosions of individual freedom led the founders to divide government power between branches and further still, between levels of government.

Yet, the text of that venerable document is unclear about which branch of government should in fact exercise authority over immigration, and whether the national government or state and local governments should regulate these policies. Not surprisingly, the answer to the question of who has the authority to make immigration policy has been decided in dissimilar ways in different points in U.S history, but always with the unmistakable influence of politics.

Before 1882 and most definitely before the Civil War, neither the presidency nor any branch of the national government enjoyed authority over immigration because the states and localities ran entry/exit policy. Even when state actions triggered foreign policy repercussions, the national government resisted getting involved. In the antebellum period, South Carolina and seven other slaves states passed laws restricting the entry and movement of black sailors from foreign ships docked at seaports. These laws caused major diplomatic friction with Great Britain and other nations, but President Andrew Jackson was unwilling or unable to compel these southern states to revoke or change their laws. The foreign nations resorted to lobbying state officials directly. These “negro seamen acts,” as they were called, are an example of states monopolizing immigration policy in that period.

One of the main forces dictating state control of immigration policy was the slave states’ jealously guarding what they saw as their prerogative under states’ rights. They were also bolstered by the constitutional doctrine of “police powers,” which assigned policies regarding health, safety, and morals to local control. Before the Civil War, no national immigration policy could threaten the states’ (both slave and free) abilities to regulate the movement of those whom they deemed as undesirable persons from entering, traveling across, or remaining in their territory.

Today, most Americans regard the ability of the national government to regulate immigration as normal and obvious. However, the shift to exclusive national control over the determination of the entry/exit rights of persons did not happen until 95 years after the ratification of the U.S. Constitution. Most scholars pinpoint 1882 as the turning point. In that year, Congress passed the infamous federal law banning the migration of most Chinese in the form of the Chinese Exclusion Act.

What caused that transition of authority after almost a century-long equilibrium of state control?

The Civil War dramatically rearranged the relationships between the national government and the states, with the national government gaining the upper hand in most policy areas, including immigration. Several Supreme Court rulings such as Chae Chan Ping v United States (1889)and Fong Yue Ting v United States (1893), created the “plenary power” doctrine, which is the idea that the national government has unqualified power over exclusion and deportation decisions because of the foreign policy implications presented by immigration. The highest court in the land had given notice via these cases that it would hold the national governments’ actions on immigration to very little scrutiny, thereby giving it wide berth in crafting immigration policy. 

The Supreme Court was able to make its rulings in both those 19th-century landmark cases because the Civil War had politically taken slavery off the table. This ensured that the slave states no longer fought vociferously to block federal laws impinging on the freedom of movement. At roughly the same time, the northeastern states also stopped fighting the national government for control when the Supreme Court invalidated their ability to defend themselves against receiving indigent, sickly, insane, and criminal immigrants. When states and localities stopped opposing federal control over policies that affected the freedom of movement of persons, they ceded control of entry/exit policy to the national government. It now enjoys exclusive control.

The executive branch has undoubtedly benefited from this decisive shift. But it still faces an uphill battle as evidenced by President Obama’s recently stymied executive action to extend his Deferred Action in Childhood Arrivals program to that groups’ undocumented parents. This recent development is a contemporary illustration of the ongoing political struggle between the executive branch, Congress, and the federal judiciary on the question of the scope of presidential authority on immigration.

So why do such turf battles over immigration persist today? Or put differently, what is driving the conflict now?

First, the Supreme Court’s plenary power doctrine, which is articulated and reinforced now in a long line of decisions, is clear only on the point of congressional plenary power over immigration. In Fiallo v Bell (1977), the majority wrote, “Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. The power to expel or exclude aliens is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” The Court has been far less instructive on the executive branch’s role in this policy area, and that has contributed to inter-branch power struggles. 

Secondly, while the national government’s control over immigration policy is now consolidated, the United States remains a federal system with 50 states that are free to craft their own approaches on how to treat immigrants once they arrive. Driving the disparate state approaches to immigrants is the fact that undocumented immigrants tend to settle in only 5 states.

The failed federal border policy and interior enforcement policies that have resulted in an undocumented population of approximately 11 million people has disproportionately affected only a handful of states. The taxpayers of these states must shoulder the costs for undocumented immigrants in public schools, prisons, and medical care because of a failed national enforcement policy. This fiscal concern has been one of the driving forces for the profusion of state and local policy making on immigration that began in the early 2000s. Add to that nativism, racism, and perceived unfair economic competition during a weak economy, and you have a potent brew.

Finally, the United States remains a government of separate branches sharing power. When divided government ensures that different political parties dominate separate branches of government, it is a recipe for frequent conflict and gridlock on hot button issues like immigration. Case in point: the hostile reception of the congressional Republicans and the federal judiciary to President Obama’s executive actions on immigration, which he argued congressional inaction necessitated. In opposing his executive actions, congressional Republicans and other critics have argued in part that Obama had overreached his authority and impermissibly bypassed or ignored existing laws passed by democratic bodies.

The dispositive judgment on Obama’s executive actions on immigration (even though the Supreme Court failed to render one when it deadlocked 4-4 in United State v Texas) has been rendered by politics. Indications of partisanship can be found in the reaction to District Court Judge Andrew Hanen who was criticized for frequently sprinkling political commentary in his decisions about immigration including his decision in United States v Texas, which halted Obama’s Deferred Action for Parents of Americans program. Further evidence of the political divide on immigration is the split along ideological lines among the three-judge Fifth Circuit panel that affirmed Hanen’s decision.

Presently, the biggest constraint on the authority that a president may exercise on immigration policy is not constitutional but political in origin. Skirmishes between the national government and the states continue to erupt over immigration policy. These fights inevitably spill over to the federal judiciary, which is the tie-breaker in federalism disputes between the national government and the states. And as the battles move to the federal level, further fissures are exposed in these inter-branch fights. 

Despite the inaction toward sorely needed comprehensive immigration reform, the great irony is that the very federal system that was the source of so much of the constitutional conflict in the antebellum period may now be the safety valve. While the national government continues to suffer a debilitating stalemate on the immigration issue, varieties of reforms and innovations (both restrictive and pro-immigrant) have been going on for some time at the state and local levels in the absence of federal leadership. Rather than trying to work with a recalcitrant Congress, the new president might consider thinking out of the federal box and work to coordinate with governors and other state officials to make sure some immigration reforms take places at least on the state level.

Anna O. Law holds the Herbert Kurz Chair in Constitutional Rights in the department of political science at City University of New York, Brooklyn College. She teaches and conducts research in the areas of U.S. constitutional law and history and U.S. immigration law and history. She is the author of The Immigration Battle in American Courts (Cambridge 2010). Her current book project is on immigration federalism and slavery from the colonial period to 1882.