Brief of Professor Nikolas Bowie as Amicus Curiae in Support of New York’s Opposition to ICE’s Motion to Dismiss

Abstract

The Constitution gives Congress many powers, but it says nothing about a power to regulate immigration. Instead, for a little over a century, this sovereign power has been implied from the constitutional provisions that authorize Congress to “regulate Commerce with foreign Nations,” to “establish an uniform Rule of Naturalization,” to declare war and to ratify treaties, and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” See Chinese Exclusion Case, 130 U.S. 581, 604 (1889). Although these provisions are broad, they do not permit Congress to do anything it wishes in the name of policing immigration. Yet that is what the federal government suggests when its agents claim the statutory authority to invade state courthouses and arrest immigrants without warrant—disrupting proceedings, intimidating witnesses, and scaring away seekers of justice.

There is nothing necessary or proper about these courthouse arrests. Rather, they are premised on an exercise of power far beyond what the Constitution allows and what Congress has endorsed.