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Justifying Power: Federalism, Immigration, and 'Foreign Affairs'

44 Pages Posted: 23 Sep 2013 Last revised: 7 Oct 2013

Date Written: September 15, 2013


Immigration federalism is all the rage. But debates over the best ways to create and implement immigration and integration policies across the many levels of a federal system are constructed and constrained by the background constitutional rules that allocate power in a given federation. In most Western federations, these structural foundations are set, with contestation only at the margins. In the quasi-federal European Union, however, the current debate is over first principles: Which level of government — the Member States or the supranational EU institutions — should have the power to regulate immigration, and under what rationale? To inform the EU debate, this Article examines the development of the federal plenary power over immigration in the United States and the Supreme Court’s use of ‘foreign affairs’ to justify federal control. This doctrinal evolution serves as a cautionary tale to those EU Member States wary of losing national control over immigration. To limit the reach of supranational power, concerned Member States should demand specific evidence of the connection between a proposed supranational immigration regulation and European-wide foreign policy concerns.

Keywords: Immigration, Federalism, European Union, United States

Suggested Citation

Delaney, Erin F., Justifying Power: Federalism, Immigration, and 'Foreign Affairs' (September 15, 2013). Duke Journal of Constitutional Law & Public Policy, Vol. 8, No. 1, 2013; Northwestern Public Law Research Paper No. 13-33. Available at SSRN:

Erin F. Delaney (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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