Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution

55 Pages Posted: 5 Feb 2018  

Jennifer Gordon

Fordham University School of Law

Date Written: November 20, 2017

Abstract

The relationship of immigration law to the Constitution has long been incoherent. One result is that there is little clarity on the appropriate standard of review for constitutional violations when aspects of immigration law and policy are challenged in the federal courts. This Article advances the Commerce Clause as the anchor of a new understanding of the link between the government's immigration power and the Constitution. Despite the extensive early history of the Foreign Commerce Clause as the presumed source of the immigration power, it plays almost no role in immigration jurisprudence today, and few scholars have seriously considered its suitability for that role. More strikingly, none have explored the Interstate Commerce Clause as an appropriate source of the immigration power, one that could open the door to a normalization of constitutional analysis in the immigration context. The Article argues that both the Foreign and the Interstate Commerce Clauses should be understood to undergird the contemporary immigration power, and suggests that acknowledging immigration’s relationship to the Commerce Clause clears a path to more routine constitutional review of immigration law and policy.

Keywords: immigration, commerce clause, constitution

Suggested Citation

Gordon, Jennifer, Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution (November 20, 2017). Indiana Law Journal, Vol. 93, 2018. Available at SSRN: https://ssrn.com/abstract=3110883

Jennifer Gordon (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States
212-636-7444 (Phone)
212-636-6899 (Fax)

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