Sorry, Judge Napolitano: Immigration Isn’t “Foreign Policy”

Seal of the United States Court of Appeals for...
Seal of the United States Court of Appeals for the Ninth Circuit. (Photo credit: Wikipedia)

By the time you read this, the US Court of Appeals for the Ninth Circuit may have handed down a ruling for or against president Donald Trump’s executive order banning travel and immigration from seven countries. Two states (Washington and Minnesota) are suing to kill that order.

Andrew Napolitano — a prominent constitutionalist and libertarian commentator, not to mention a former New Jersey Superior Court judge — writes in Reason that the states don’t have legitimate standing to sue. Why? Because the Constitution provides for quite a bit of presidential latitude on foreign policy.

I’ll explain why Judge Napolitano is wrong on the details momentarily, but first let’s get one thing out of the way: Immigration is not a foreign policy matter. Foreign policy relates to matters outside the United States and to relations between US government and other governments around the world. Immigration relates to individuals wishing to enter and possibly reside in the United States. It is therefore a matter of domestic, not foreign, policy.

It’s also a matter constitutionally reserved to the states, which is where Judge Napolitano really steps in it. He hangs his argument for the order and against the states’ legal standing on the fact that “[a] 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security.”

But that statute is plainly unconstitutional, for the same reason that the states have standing. Why? Because per Article I, Section 9 of the Constitution, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight …”

Article V of the Constitution forbids amending that provision prior to 1808, and no amendment to it has been proposed or ratified since that time. Congress scrupulously observed that restriction for nearly a century. As with many restrictions on federal power, it eventually got ignored. But it’s still “the supreme law of the land.”

The Constitution doesn’t enumerate a federal power to regulate immigration. In fact it clearly and unambiguously reserves that power to the states. That makes the statute Judge Napolitano references unconstitutional, and the executive order hinging on it void. Obviously states have standing to sue when the federal government usurps a power the Constitution reserves to them.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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  • Steven D. Pike

    You are correct in that he President did not rely on his foreign policy authority. He relied on the plain language of the statute you cited regarding immigration that expressly gave him the right to issue his order. I agree that Article 1 language: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight” is also correct., I am not an attorney, but reading the source document, I do not think an amendment to the Constitution was required after 1808.

    • Steven,

      The US Constitution does not enumerate a federal power to regulate immigration.

      US Constitution, 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

      All that Article I, Section 9 and Article V did was prevent the creation of such a power prior to 1808. They didn’t automatically create that power after 1808. That would have taken a constitutional amendment.

      That’s why the only immigration regulations passed by Congress from 1789 to 1882 were laws allowing federal port officials to collect fines and fees pursuant to STATE immigration laws.

      It took almost a century for them to start trying to find ways around what they knew was a constitutional ban on federal immigration laws.

      Even in 1882, they didn’t credit the 1875 Supreme Court in Chy Lung v. Freeman, in which an activist court just pulled a newly fantasized federal immigration power out of its collective ass. They hung the 1882 law on treaty provisions (treaties being, according to the Constitution, co-equal with it as “the supreme law of the land”).

      It wasn’t until the 1890s that the feds built Ellis Island and took over immigrant processing from the Port Authority of New York.

      It wasn’t until the 1920s that there was significant uniform regulation of immigration beyond the minimal “this guy isn’t carrying tuberculosis, is he?”

      It wasn’t until the late 1940s, after World War II, that a passport was required to enter or leave the United States.

      And it wasn’t until the 1950s, with “Operation Wetback” and so forth, that we started seeing the full-blown immigration fascism that Trump is trying to give an injection of steroids to.

      • Steven D. Pike

        Article I, Section 8 in creating the authority of the Congress, “To establish an uniform Rule of Naturalization.” I think that naturalization requires immigration. I said I was not a lawyer, but I was a border officer for 35 years. If Article 10 trumped the federal power to regulate immigration, why did we get successive laws regulating it, all found Constitutional. I am not unsympathetic to state’s sovereignty, and wish the states would push back in area like education, social laws, etc. I don’t want to start a fight,. just offer my two cents.

        • Naturalization is the process of becoming a citizen.

          Immigration is moving into a country.

          They’re two different things. Millions of immigrants never become citizens. And in theory, that “uniform rule of naturalization” could allow people to become citizens without moving here.

          Yes, I understand that the courts have been ruling in favor of a federal power to regulate immigration since 1875.

          They’ve also been ruling in favor of a federal power to regulate guns since 1938.

          Here’s the thing about court rulings:

          In 1857 the Supreme Court ruled that black people had “no rights which the white man was bound to respect” (Dred Scott v. Sanford).

          In 1896, the Supreme Court ruled that yes, black people had rights but that segregation was OK under “separate but equal” conditions.

          In 1954, the Supreme Court ruled that no, segregation wasn’t constitutional.

          All three of those opinions were mutually exclusive of one another. If any one of them was correct, the other two couldn’t be. And yet the Supreme Court came up with all of them.

          So the Supreme Court ruling X is not evidence that X is constitutional. It’s just evidence that some judges decided X. They might decide Y later.

          In the meantime, the Constitution does say what it says, and there’s evidence that it means what it says.

          The matter of immigration was in fact debated during the framing and Article I, Section 9 was a compromise.

          The slave states wouldn’t ratify a Constitution that allowed the feds to regulate the slave trade.

          Pennsylvania wouldn’t ratify a Constitution that allowed the feds to regulate the immigration of cheap labor into its developing manufacturing sector.

          If there had been a federal power to regulate immigration in the Constitution, we wouldn’t remember the Constitution these days because it would have been thrown in the trash can in 1787.

          After 1808, Congress was able to regulate the slave trade because Article I, Section 8 gives it the power to regulate “commerce with foreign nations.” That’s an enumerated power to which Article I, Section 9 was an exception.

          But on immigration, the Constitution was silent outside of Article I, Section 9.

          I’m not big on “states’ rights” myself. My preference would be for completely open borders. But the Constitution both implicitly and explicitly assigns power concerning immigration to the states. And Congress, the president and the courts recognized that fact for nearly 100 years before they started doing whatever the heck they felt like.

          • Steven D. Pike

            I do not think the question of immigration as a federal duty will be overturned. I was a customs officer but later had immigration duties I do appreciate someone arguing rationally and cogently. We seem to lack that nowadays.

          • I’m glad the article caused you to think on the issue. My job is to have an opinion and to write on it well enough to get people to do that, so thank you!

          • Rick Dutkiewicz

            Thanks for doing what you do, Tom. Great elucidation. I’m curious how Napolitano would answer your arguments. Although, I don’t think either you or the Judge believe the state will ever play by its own written rules. “Stroke of the pen / Law of the land” is their preferred modus operandi. The rules are just there to get people to look the other way. “Nothing to see here, we’re just following the rulebook”. Reading a few history books about the US Constitution, its amendments, and relevant court precedents is what made take the final step from minarchism into the big A.

          • Thanks for reading and liking it, Rick!

            I would love to see a response from Judge Napolitano, but I don’t expect one. Here’s why and why not:

            NOT because I think he would be unable to make a counter-argument, or that he would be afraid to try. He’s quite capable of taking on issues and making good arguments for his case.

            Rather because of the way the “public intellectual” or “political pundit” game works.

            When you have the bully pulpit he does, you generally hunt bigger game than yourself, not smaller.

            He’s well-known and has name recognition and a significant publishing/syndication/”expert talking head” platform (all of which he has earned, by the way).

            When I take a shot at him, I am a guy trying to take down a bear with a .22. Hopefully that’s interesting in its own way.

            If he shot back at me, he’d be a guy trying to take down a rabbit with a 12-gauge shotgun. Not nearly as interesting; a waste of his ammo and effort that if done too often would diminish rather than maximize his results.

            He’s probably going to hunt his own bears; that is, take on people and issues that loom larger, not smaller, than himself in the public eye.

            That’s not to say that a more well-known writer won’t occasionally engage with a less well-known writer, and it’s nice when it happens. But it’s not the usual course of things, nor should it be.

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