State and Federal Regulation of Immigration

Since the end of the nineteenth century, the federal government has regulated the movement of individuals into the United States under the umbrella of immigration law. This regulation has directly implicated the Civil Liberties of Aliens seeking to enter or remain in the United States, as a constraint on the freedom of movement. Federal regulation of immigration has had broader implications for civil liberties as a context in which well-established constitutional norms have been found inapplicable. Immigration law continues to be constitutionally exceptional, a realm in which rights have been diluted to the extent that they are recognized at all.

The states have played a much less significant, although not inconsequential, role in the regulation of immigration. For more than a century, state participation in immigration control has been bounded by the peremptory federal interest in conducting national foreign relations. Consistent with devolutionary trends in other contexts, however, the states may come to play a greater role in immigration regulation.

Before the advent of federal regulation, such control of immigration as existed was found in a patchwork of state laws variously regulating the entry of convicts, the poor, and the sick. Many of these state laws applied to internal as well as international migration, and they were not well enforced. Enacted in 1872 and 1882 and mirroring the criteria of state exclusion measures, the first federal immigration measures prohibited the entry of prostitutes, idiots, lunatics, and persons likely to become a public charge. The Contract Labor Law of 1885 prohibited engaging the services of aliens before their embarkation to the United States.

But it was with respect to the so-called Chinese Exclusion laws of the 1880s and 1890s that the courts laid the constitutional foundations of immigration exceptionalism. The laws imposed a bar on new immigration from China and provided for the removal of Chinese aliens who could not demonstrate the legality of their presence in the United States. The Supreme Court recognized the federal government’s constitutional authority to regulate immigration—a power not specified in the constitutional text—in the 1889 decision in the Chinese Exclusion Case.

In Fong Yue Ting v. United States, the Court rejected the rights-based claim of a Chinese resident facing deportation. The Court found deportation not to constitute punishment for constitutional purposes, thus eluding a due process challenge. As the Court held in the Cold War era decision in United States ex rel. Knauff v. Shaughnessy, ‘‘[w]hatever the procedure authorized by Congress is, it is due process as far as the alien denied entry is concerned.’’ On the same basis, the Court has rejected invocation of jury trial and Eighth Amendment rights in immigration proceedings. It has also rejected Equal Protection-based challenges to the scheme of federal immigration control, most notably in the modern-era decision in Fiallo v. Bell. Only in the context of the removal of legally admitted aliens has the Court held immigration enforcement to the standards of procedural due process.

These decisions aggregate as the plenary power doctrine under which the courts have deferred to the authority of the political branches. ‘‘Over no conceivable subject,’’ the Supreme Court intoned in Kleindienst v. Mandel, ‘‘is the legislative power of Congress more complete than it is over’’ the regulation of immigration. The plenary power doctrine is long on the rhetoric of sovereignty, dismissive of otherwise applicable constitutional protections and modest in the assertion of judicial power. The result has been a realm in which civil liberties have been more persistently vulnerable than perhaps any other.

Among examples of practices tolerated in the face of this judicial reticence were the Chinese Exclusion and other race-based exclusions; the national origins quota system applicable to admissions from the 1920s through 1965, which favored immigrants from Northern European countries; and other classifications that would not withstand constitutional scrutiny in other contexts, for instance on the basis of gender, legitimacy, or disability. Aliens have been excluded on the basis of political speech that would otherwise enjoy core First Amendment protection.

Admissions continue to be subject to national quotas, thus comprising a form of national origins discrimination. Aliens are effectively discriminated against on the basis of wealth, insofar as they must demonstrate adequate sources of support as a condition to entry. Aliens have no right of judicial review when denied visas to travel to the United States. Major immigration reform legislation enacted in 1996 has resulted in the deportation of longstanding legal resident aliens for relatively minor crimes, with no possibility for discretion on the part of immigration enforcement authorities.

The plenary power regime has been the target of withering criticism by academics and immigrant rights advocates. Although the doctrine remains in place, there have been recent signs of slippage. The Court expressed serious constitutional doubts about the indefinite detention of deportable aliens whose home countries refused to take them back in Zadvydas v. Davis and applied an ordinary, nonplenary power analysis on the way to upholding a gender classification in the naturalization law in Nguyen v. INS. On the other hand, the national security implications of immigration in the wake of the September 11 attacks may retard the mainstreaming of constitutional rights doctrine as applied in the immigration law context.

State regulation of immigration remains of subsidiary importance. Framing the issue as one of national foreign relations, the Supreme Court in Chy Lung v. Freeman (1875) denied the capacity of the states to engage in immigration control. In Hines v. Davidowitz (1941), the Court struck down a state scheme requiring the registration of aliens on the eve of World War II. The Court has been solicitous of claims brought by aliens challenging discriminatory state benefits regimes, both on preemption and equal protection rationales. The courts show no sign of transplanting new federalism rationales to the immigration law context.

The political branches, however, seem inclined to experiment with state participation in immigration law enforcement. The 1996 welfare reform act delegated to states the authority to determine noncitizen eligibility for certain federally funded benefits. The Immigration and Nationality Act now provides for undertaking cooperative agreements with state and local enforcement agencies with respect to enforcement of federal immigration laws and provides for the deputization of state and local officials in the face of a ‘‘mass influx’’ of aliens. A controversial 1996 opinion of the Office of Legal Counsel, Department of Justice, concluded that state and local law enforcement officers could undertake immigration enforcement activity even in the absence of expressly delegated authority. As yet, none of these capacities has been significantly exploited. Perceived security priorities in the wake of September 11 have prompted some to argue for greater state participation in immigration enforcement.

PETER J. SPIRO

References and Further Reading

• Chin, Gabriel J., Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange But Unexceptional Constitutional Immigration Law, Georgetown Immigration Law Journal 14 (2000): 257.
• Hutchinson, E. P. Legislative History of American Immigration Policy 1798–1965. Philadelphia: University of Pennsylvania Press, 1981.
• Henkin, Louis H., The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, Harvard Law Review 100 (1987): 853.
• Legomsky, Stephen H., Immigration Law and the Principle of Plenary Congressional Power, Supreme Court Review 1984 (1985): 255.
• Neuman, Gerald L. Strangers to the Constitution: Immigrants, Borders, and Fundamental Law. Princeton: Princeton University Press, 1996.
• ———, The Lost Century of Immigration Law (1776–1875), Columbia Law Review 93 (1993): 1833.
• Schuck, Peter H., The Transformation of Immigration Law Columbia Law Review 84 (1984): 1.
• Spiro, Peter J., Explaining the End of Plenary Power, Georgetown Journal of Immigration Law 16 (2002): 339.
• ———, The States and Immigration in an Era of Demi- Sovereignties, Virginia Journal of International Law 35 (1994): 1: 121.

Cases and Statutes Cited

• Chinese Exclusion Case, 130 U.S. 581 (1889)
• Chy Lung v. Freeman, 92 U.S. 275 (1875)
• Fiallo v. Bell, 430 U.S. 787 (1977)
• Fong Yue Ting v. United States, 149 U.S. 698 (1893)
• Graham v. Richardson, 403 U.S. 365 (1971)
• Harisiades v. Shaugnessy, 342 U.S. 580 (1952)
• Hines v. Davidowitz, 312 U.S. 52 (1941)
• The Japanese Immigrant Case, 189 U.S. 86 (1903).
• Kleindienst v. Mandel, 408 U.S. 753 (1972)
• Landon v. Plasencia, 459 U.S. 21 (1982)
• Nguyen v. INS, 533 U.S. 53 (2001)
• Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)
• United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)
• Zadvydas v. Davis, 553 U.S. 678 (2001)

See also Aliens, Civil Liberties of; Citizenship; Immigration and Nationality Act Amendments of 1965; 9/11 and the War on Terrorism; Race and Immigration