Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution

When the United States government sets immigration law and policy, how much attention must it pay to constitutional rights? This question has been much debated since President Donald Trump issued a series of immigration-related executive orders in his first week in office, including a bar on entry by citizens of a set of majority-Muslim countries, but it was controversial long before then. In important part, the answer depends on what the Constitution says about the scope and limits of the power of the federal government over immigration. Therein lies the tale. On this subject, the country’s founding documents say very little, and the Supreme Court’s interpretations have been inconsistent at best. For well over a century, federal courts have often relied on the theory that the immigration authority is rooted in the Constitution’s grant to the federal government of control over matters related to sovereignty and foreign affairs. This explanation forms the basis of the plenary power doctrine, first announced in 1889 and applied by the Supreme Court most recently in 2018. The doctrine grants Congress and the executive branch nearly unreviewable powers in the immigration arena. This Article offers an alternative. It asserts that immigration to the United States is and has long been principally economic in its purpose and impact and thus in many cases is properly considered a function of both the Foreign and Interstate Commerce Clauses. The constitutional source of a particular authority of a branch of the government does not wholly determine the degree of constitutional review that courts will exercise, but it is an important factor. An immigration power rooted in the Commerce Clause, the Article argues, would put a thumb on the scale in favor of ordinary judicial review for immigration statutes, rules, and policies challenged as violating constitutional rights