The Power to Exclude

20 Pages Posted: 4 Nov 2018

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: October 13, 2018

Abstract

Under modern doctrine, the federal government has an inherent authority to exclude aliens from entering the United States. In contrast, states lack any power to exclude aliens from entering their own borders. Though well settled, this dichotomy stands in tension with our Constitution’s structural design. It is a bedrock principle that the federal government only has those powers that are enumerated in the Constitution. In many respects, modern doctrine inverts our constitutional order. The states, which have the strongest claim to a general power to exclude cannot exercise that power. Congress, which has the weakest claim to an inherent power to exclude, can exercise that power with few discernible limits.

Does the federal government have the power to exclude aliens? Yes, though the answer is not as straightforward as many of us have assumed. There are four plausible candidates in Article I to support an exclusionary power: the Naturalization, Commerce, Law of Nations, and Migration of Importation Clauses. However, none of these clauses, standing by itself, supports an enumerated power to prevent foreign aliens from entering the United States. Rather, the strongest argument in support of an exclusionary power is an implied authority. It is both “necessary” and “proper” for Congress to restrict entry to aliens in order to more effectively naturalize citizens and, perhaps, regulate commerce. This authority is incidental, and does not “flatten the principle of state sovereignty.” Therefore, the exclusionary power does not amount to a “great substantive and independent power” that improperly aggrandizes Congress’s reach over states, their officials, and individual Americans. This authority belongs solely to Congress, and is not an inherent executive power.

Keywords: Immigration, Power to Exclude, Necessary and Proper

Suggested Citation

Blackman, Josh, The Power to Exclude (October 13, 2018). Available at SSRN: https://ssrn.com/abstract=3265780 or http://dx.doi.org/10.2139/ssrn.3265780

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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