The Constitution – Immigration Law


Immigration has been essential for the United States of America.  Even before there was a nation, immigrants started self-government with the Mayflower Compact in 1620.  And republican (representative) self-government was perfected by means of both the Declaration of Independence (1776) and the Constitution (1789).  

Given the importance of immigration to the nation, one of the few law-making powers in Article I, Section 8 authorizes Congress to enact a uniform rule of Naturalization.  The purpose of Naturalization is to make citizens out of immigrants.  One of the three “Civil War Amendments” to the Constitution (the Fourteenth Amendment) subsequently established that all persons who are born or naturalized in the United States are citizens of the United States and of the State where they reside.  In turn, citizens are entitled to all privileges and immunities of the United States while all persons (even non-citizens) are protected by due process of law and the equal protection of the laws.

When we consider immigration, we sense the attraction of the American nation for people throughout the world, the attractiveness of a nation of self-governing people who created and control their own government by means of a written Constitution.  And with her poem “The New Colossus” (enscribed upon the Statue of Liberty) Emma Lazarus extended America’s invitation to the world:

Give me your tired, your poor, Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, the tempest-tost to me,

I lift my lamp beside the golden door!

Over the centuries, federal policies have implemented our invitation to the world and the welcome of the Statue of Liberty.  Some immigration/naturalization policies were more welcoming than others but all were constitutionally subject to the authority of Congress to legislate and the President to enforce.

For example, in 1965, Congress executed a policy establishing new immigration quotas while closing down a traditional guest worker program with Mexico.  The program shut down was known as “the bracero program.”  Overnight, the new policy turned migratory Mexican workers who had travelled north each year to harvest crops in the United States and Canada, turned the seasonal migrants into “illegals.”  

A Princeton University professor Douglas Massey summarized the drastic directive this way:

[S]hifts in U.S. immigration policies transformed a circular flow of male workers from Mexico going to a few states into a settled population of families living in 50 states, including 11 million undocumented people.

The transformation led to many of our current difficulties including the DACA (“Deferred Action for Childhood Arrivals”) controversy.

In the book, A Nation of Nations (A Great American Immigration Story), Tom Gjelten said that “[t]he most important legal immigration channel for Latin Americans prior to 1965 was the bracero program.”  Gjelten added that:

Congress voted in 1964 to terminate the program, spurred by liberal reformers who saw the program as exploitative of the foreign workers.

Given the way things turned out, people should have been better advised in advance of such drastic policy changes; the braceros themselves and people knowledgeable about the bracero program could have weighed in with Congress for a better outcome.  For instance, had we asked the seasonal migrants or the employers affected, we could have found out whether “exploitation” required shutting down the migratory workers’ way of life for them.

Justified or not, it was an elected Congress and President who ended the bracero program.  The result was to dislocate millions of “undocumented people” who now live in the United States.  Who even knows how many of them still earn their living harvesting our crops for us, working north and south with the seasons?

Because of the continuing fallout from such congressional action (or from congressional inaction), some States are taking steps to control illegal immigration.  (States are authorized to enact general laws of all sorts so long as they do not interfere with constitutional Congress – made laws.)  In addition, some Presidents have issued “executive orders” to control immigration although, under the Constitution, their orders are not really laws.  (Only Congress has the power to make federal laws.)

Under the Constitution, then, we look to Congress for effective immigration/naturalization laws and policies; and we look to the President only for enforcement.  Therefore, immigration/naturalization policies deserve the careful consideration of the voters who, by choosing and electing the individuals who become Congressmen or Presidents, influence and oversee immigration/naturalization outcomes.  The immigration shambles at the southern border that we see today is not excused by our frustration with Congress.  A self-governing people is responsible for its nation’s immigration/naturalization future.

Immigration/naturalization will always be a mainstay of the American republic.  Interestingly, a Yale Law School professor, Akhil Reed Amar, recently referred to Alexander Hamilton (a key author of “The Federalist Papers”) as “America’s greatest immigrant.” (Hamilton himself emigrated to New York from Nevis Island in the West Indies.)  So, keeping in mind Emma Lazarus’s “The New Colossus,” the American people can persuade Congress to put together a more thoughtful immigration/naturalization policy from now on.