Over the last few weeks, the issue of immigration and the enforcement of immigration laws has roiled Minnesota. Can we chart a path forward for our state?
1) Immigration policy is a federal issue
If you are looking to the Center of the American Experiment for policy guidance, I’m afraid you might come up lighter than you usually would. Article I, Section I of the Constitution reads in its entirety:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article I, Section 8, Clause 4, states that “The Congress shall have Power…To establish an uniform Rule of Naturalization.” On this basis, as the Cornell Laws School’s Legal Information Institute puts it, the Supreme Court has long recognized:
…Congress as having “plenary” power over immigration, giving it almost complete authority to decide whether foreign nationals (“aliens,” under governing statutes and case law) may enter or remain in the United States.
This principle — that it is federal and not state and local governments that make immigration policy — was litigated in 2012. Arizona had attempted, as SCOTUSblog reported, “to supplement federal immigration enforcement through several state law measures.” These included a requirement for “police to check the immigration status of persons whom they detain before releasing them,” making it a state crime “to be in the country without proper authorization,” making it a state crime for illegal immigrants to apply for a job or work, and authorizing “state law enforcement officials to arrest without a warrant any individual otherwise lawfully in the country, if law enforcement officials have probable cause to believe the individual has committed a deportable offense.”
The Obama administration fought this in court, arguing that such matters were for federal and not state governments, and they largely won, SCOTUSblog noting that:
Section 2(B) – which requires the police to check the immigration status of detained individuals before releasing them – is the only provision that potentially survived.
Thus, we at the Center have not generally taken a position on immigration besides “obey the law” because, as a state-based think tank, we tend not to deal with federal policy areas. We cannot change immigration policy at the state level.
2) Congress makes law, the president enforces it
If the Constitution gives the legislative branch — Congress — the power to make immigration laws for the United States, it also gives the executive branch — the presidency and its various agencies — the duty of enforcing them.
Article II, Section 1, reads:
The executive Power shall be vested in a President of the United States of America.
Article II, Section 3, lists the various duties of the president, one of which is that “he shall take Care that the Laws be faithfully executed.”
Of course, the president does not have unlimited power to do this. The anti-federalists insisted on a Bill of Rights, the first ten amendments to the Constitution, precisely to guard against an overbearing federal government. Pertinent here are the First Amendment (which guarantees “freedom of speech” and “the right of the people peaceably to assemble”), Second Amendment (which guarantees that “the right of the people to keep and bear Arms, shall not be infringed”), and the Fourth Amendment, which reads in full:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Within these bounds, then, it is perfectly legitimate for the executive branch to enforce the immigration laws made by Congress.
Summing up so far
This refresher in civics can be summarized as:
- Congress makes immigration law for the entire United States
- The president enforces that law across the entire United States
It is important to bear this in mind given recent events. If we think that immigration law is wrong, it is up to Congress to change it. It cannot be done by the states. If we seek to circumvent that process by simply having the president decide not to honor Article II, Section 3, as President Biden did with his refusal to enforce immigration laws, we are seeking to have the executive branch usurp the law-making authority delegated in the Constitution to the legislative branch. This would be the behavior of a King.
Tomorrow, I’ll explore what this might mean for our state.
