The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries: Originalism, Current Doctrine, and a Second-Best Alternative

34 Pages Posted: 18 Dec 2018

See all articles by Nelson Lund

Nelson Lund

George Mason University School of Law

Date Written: December 17, 2018

Abstract

The Supreme Court’s immigration jurisprudence is fundamentally misguided, in the sense that it has little basis in the original meaning of the Constitution. In this essay, I will explain why I think so, and what the Court might do to ameliorate the effects of its past mistakes without overruling a raft of settled precedents.

Part I analyzes the text of the Constitution, which offers a reasonably clear allocation of authority over immigration between the state and federal governments. The Foreign Commerce Clause empowers Congress to limit the entry of aliens onto American soil, and the Naturalization Clause authorizes Congress to set uniform criteria for admission to American citizenship. Nothing on the face of the Constitution permits Congress to displace the states’ residual authority over aliens, which includes the power to exclude or expel unsuitable persons from their own territory.

Part II reviews early debates in Congress about the scope and nature of federal power over immigration. There were important disagreements, some of which resemble today’s policy debates, but Congress generally refrained from going much beyond what the text of the Constitution pretty clearly authorizes.

Part III traces the evolution of Supreme Court doctrine. The Court began by rooting federal immigration authority primarily in the Foreign Commerce Clause, where it belongs, but then misinterpreted that Clause. In the late nineteenth century, the Justices made a dramatic and largely unexplained shift to a non-textual theory under which broad federal authority over immigration and aliens is treated as an inherent aspect of American sovereignty.

Part IV shows that this doctrinal shift may not have had much practical significance. In non-immigration contexts, the Court eventually interpreted the Commerce Clause itself in a way that gave Congress practically the same far-reaching authority that the inherent power theory bestows in the immigration field. Thus, even if the Court had stuck with the Foreign Commerce Clause as the primary source of federal authority over immigration, the result would likely have been much the same as what the Court has mistakenly put in its place.

Part V assumes that the Court is very unlikely to reconsider the well-established inherent power theory. In recent decades, however, the Justices have been experimenting with doctrinal devices designed to put some limits on the almost unlimited Commerce Clause authority that previous cases had mistakenly conferred on Congress. The paper concludes with two examples showing how these limiting doctrines can and should be used to resolve recent controversies in which some states have desired to pursue policy objectives to which federal officials object.

Keywords: immigration, Commerce Clause, sanctuary, originalism, citizenship, aliens, naturalization

JEL Classification: K37, K10

Suggested Citation

Lund, Nelson Robert, The Constitutionality of Immigration Sanctuaries and Anti-Sanctuaries: Originalism, Current Doctrine, and a Second-Best Alternative (December 17, 2018). University of Pennsylvania Journal of Constitutional Law, Forthcoming; George Mason Legal Studies Research Paper No. LS 18-37. Available at SSRN: https://ssrn.com/abstract=3302818 or http://dx.doi.org/10.2139/ssrn.3302818

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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