Now with that behind us let’s look at what the Constitution and US law has to say about Immigration. Article I Section 8 Clause 4 “To establish an uniform Rule of Naturalization”. I would like to note that Article I Section 9 Clause 1 does speak to immigration, but it speaks more directly to migration, or importation of slaves into the country. Nowhere in the constitution does it give authority over immigration to the states, and since it expressly gives the power to the congress, the 10th Amendment is not in play on this subject. U.S. immigration law is very complex, and there is much confusion as to how it works. The Immigration and Naturalization Act (INA), the body of law governing current immigration policy, provides for an annual worldwide limit of 675,000 permanent immigrants, with certain exceptions for close family members. It can be debated whether setting immigration standards and how many immigrants can be accepted is in conflict with the Constitution. I will speak to this more in the section on Sanctuary Cities. Lawful permanent residency allows a foreign national to work and live lawfully, and permanently in the United States. Lawful permanent residents (LPRs) are eligible to apply for nearly all jobs (i.e., jobs not legitimately restricted to U.S. citizens) and can remain in the country even if they are unemployed. Each year the United States also admits non-citizens on a temporary basis. Annually, Congress and the President determine a separate number for refugee admissions.
Immigration to the United States is based upon the following principles: the reunification of families, admitting immigrants with skills that are valuable to the U.S. economy, protecting refugees, and promoting diversity. In order to qualify for U.S. citizenship through naturalization, an individual must have had LPR status (a green card) for at least five years (or three years if he or she obtained the green card through a U.S.-citizen spouse or through the Violence Against Women Act, VAWA). There are other exceptions including, but not limited to, members of the U.S. military who serve in a time of war, or declared hostilities. Applicants for U.S. citizenship must be at least 18-years-old, demonstrate continuous residency, demonstrate “good moral character,” pass English and U.S. history and civics exams, and pay an application fee, among other requirements. This is a simplification of US immigration law but it gets the main points on the table for this discussion. With the law on the books the responsibility to carry out the law falls to the executive branch. The President and his cabinet have the authority to see that US law is implemented and followed. At the moment President Trump has been trying to use 8 US Code 1182 to justify his executive order on limiting immigration. 8 US Code 1182 does allow for preventing entry for security reasons such as terrorism. The president is also using INA Section 212(f) which allows the President to suspend the entry of any immigrants into the country based on certain factors. Further there are the powers given to the President in the Alien and Sedition Acts of 1789. Similar actions have been taken in the past to limit immigration. In 1882 President Arthur signed into law The Chinese Exclusion Act which banned Chinese laborers, and President Coolidge in 1924 signed the Johnson-Reed Act which barred Asian immigrants. It has been said that “the Constitution follows the flag,” and that the flag did not extend beyond the territory of the United States. This meant two things. First, the Constitution applied everywhere in U.S. territory, but that it did not outside U.S. territory. Within U.S. territory, non-citizens have rights because of the 14th Amendment, which declares “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Just before the Due Process and Equal Protection Clauses, the 14th Amendment prohibits states from making or enforcing “any law which shall abridge the privileges and immunities of citizens of the United States.” Notice that the 14th Amendment uses citizens in one place, and persons in another. This has long been thought to mean that non-citizens (“persons”) have due process and equal protection rights, once in the territory of the United States. The Fifth Amendment (which applies to the federal government) likewise uses the phrase “no person shall be . . . deprived of life, liberty, or property, without due process of law.” These distinctions are important and should not be overlooked.
“Immigrants will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw off, it will in exchange for an unbounded licentiousness, passing, as usual, from one extreme to another. It would be a miracle were they to stop precisely at the point of temperate liberty.” -Thomas Jefferson