ArtI.S8.C18.4.2 Implied Power of Congress Over Immigration

Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The power of Congress to exclude aliens from the United States and to prescribe the terms and conditions on which they come in is absolute, being an attribute of the United States as a sovereign nation. That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. . . . The United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.1

Except for the Alien Act of 1798,2 Congress went almost a century without enacting laws regulating immigration into the United States. The first such statute, in 1875, barred convicts and prostitutes3 and was followed by a series of exclusions based on health, criminal, moral, economic, and subversion considerations.4 Another important phase was begun with passage of the Chinese Exclusion Act in 1882,5 which was not repealed until 1943.6 In 1924, Congress enacted into law a national origins quota formula which based the proportion of admittable aliens on the nationality breakdown of the 1920 census, which, of course, was heavily weighed in favor of English and northern European ancestry.7 This national origins quota system was in effect until it was repealed in 1965.8 The basic law remains the Immigration and Nationality Act of 1952,9 which retains its essential structure while undergoing several significant revisions. These revisions have included a temporary legalization program for certain aliens without legal immigration status, employer sanctions, a general expansion and tightening of rules for removal, changes in categories of aliens who may enter temporarily, and more express provisions on federal-state cooperation in immigration enforcement.

Numerous cases underscore the sweeping nature of the powers of the Federal Government to exclude aliens and to deport aliens by administrative process. For example, in United States ex rel. Knauff v. Shaughnessy,10 an order of the Attorney General excluding, on the basis of confidential information he would not disclose, a wartime bride, who was prima facie entitled to enter the United States,11 was held to be unreviewable by the courts. Nor were regulations on which the order was based invalid as an undue delegation of legislative power. Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent.12 However, when Congress has spelled out the basis for exclusion or deportation, the Court remains free to interpret the statute and review the administration of it and to apply it, often in a manner to mitigate the effects of the law on aliens.13

Congress’s power to admit aliens under whatever conditions it lays down is exclusive of state regulation. The states can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.14 This principle, however, has not precluded all state regulations dealing with aliens.15 The power of Congress to legislate with respect to the conduct of alien residents is a concomitant of its power to prescribe the terms and conditions on which they may enter the United States, to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers. It is not a power to lay down a special code of conduct for alien residents or to govern their private relations.16

Yet Congress is empowered to assert a considerable degree of control over aliens after their admission to the country. By the Alien Registration Act of 1940, Congress provided that all aliens in the United States, fourteen years of age and over, should submit to registration and finger printing and willful failure to comply was made a criminal offense against the United States.17 This Act, taken in conjunction with other laws regulating immigration and naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens.18

An important benefit of this comprehensive, uniform regulation accruing to the alien is that it generally has precluded state regulation that may well be more severe and burdensome.19 For example, in Hines v. Davidowitz,20 the Court voided a Pennsylvania law requiring the annual registration and fingerprinting of aliens but going beyond the subsequently enacted federal law to require acquisition of an alien identification card that had to be carried at all times and to be exhibited to any police officer upon demand and to other licensing officers upon applications for such things as drivers' licenses.21

Another decision voided a Pennsylvania law limiting those eligible to welfare assistance to citizens and an Arizona law prescribing a fifteen-year durational residency period before an alien could be eligible for welfare assistance.22 Congress had provided, Justice Blackmun wrote for a unanimous Court, that persons who were likely to become public charges could not be admitted to the United States and that any alien who became a public charge within five years of his admission was to be deported unless he could show that the causes of his economic situation arose after his entry.23 Thus, in effect Congress had declared that lawfully admitted resident aliens who became public charges for causes arising after their entry were entitled to the full and equal benefit of all laws for the security of persons and property and the states were disabled from denying aliens these benefits.24


Unlike the exclusion proceedings,25 deportation proceedings afford the alien a number of constitutional rights: a right against self-incrimination,26 protection against unreasonable searches and seizures,27 guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment,28 a right to bail,29 a right to procedural due process,30 a right to counsel,31 a right to notice of charges and hearing,32 and a right to cross-examine.33

Notwithstanding these guarantees, the Supreme Court has upheld a number of statutory deportation measures as not unconstitutional. The Internal Security Act of 1950, in authorizing the Attorney General to hold in custody, without bail, aliens who are members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional.34 Nor was it unconstitutional to deport under the Alien Registration Act of 194035 a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it ex post facto, being but an exercise of the power of the United States to terminate its hospitality ad libitum.36 And a statutory provision37 making it a felony for an alien against whom a specified order of deportation is outstanding to willfully fail or refuse to make timely application for travel or other documents necessary to his departure was not on its face void for vagueness.38 An alien unlawfully in the country has no constitutional right to assert selective enforcement as a defense against his deportation.39


  1.  Jump to essay-1Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 603, 604 (1889); see also Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86 (1903); United States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Bugajewitz v. Adams, 228 U.S. 585 (1913); Hines v. Davidowitz, 312 U.S. 52 (1941); Kleindienst v. Mandel, 408 U.S. 753 (1972). In Galvan v. Press, 347 U.S. 522, 530–31 (1954), Justice Frankfurter for the Court wrote: [M]uch could be said for the view, were we writing on a clean slate, that the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens. . . . But the slate is not clean. As to the extent of the power of Congress under review, there is not merely `a page of history,' . . . but a whole volume. . . . [T]hat the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. Although the issue of racial discrimination was before the Court in Jean v. Nelson, 472 U.S. 846 (1985), in the context of parole for aliens who had not been lawfully admitted into the United States, the Court avoided it, holding that statutes and regulations precluded INS considerations of race or national origin. Justices Marshall and Brennan, in dissent, argued for reconsideration of the long line of precedents and for constitutional restrictions on the government. Id. at 858. That there exists some limitation upon exclusion of aliens is one permissible interpretation of Reagan v. Abourezk, 484 U.S. 1 (1987), aff'g by an equally divided Court, 785 F.2d 1043 (D.C. Cir. 1986), holding that mere membership in the Communist Party could not be used to exclude an alien on the ground that his activities might be prejudicial to the interests of the United States.

    The power of Congress to prescribe the rules for exclusion or expulsion of aliens is a fundamental sovereign attribute which is of a political character and therefore subject only to narrow judicial review. Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976); Mathews v. Diaz, 426 U.S. 67, 81–82 (1976); Fiallo v. Bell, 430 U.S. 787, 792 (1977). Although aliens are an identifiable class of persons, who aside from the classification at issue are already subject to disadvantages not shared by the remainder of the community, Hampton v. Mow Sun Wong, 426 U.S. at 102, Congress may treat them in ways that would violate the Equal Protection Clause if a state should do it. Diaz (residency requirement for welfare benefits); Fiallo (sex and classifications that excluded from preferential treatment under federal immigration law certain persons born out of wedlock and their natural fathers). Nonetheless in Mow Sun Wong, 426 U.S. at 103, the Court observed that when the Federal Government asserts an overriding national interest as justification for a discriminatory rule that would violate the Equal Protection Clause if adopted by a state, due process requires that it be shown that the rule was actually intended to serve that interest. The case struck down a classification that the Court thought justified by the interest asserted but that had not been imposed by a body charged with effectuating that interest. See Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978). See Sale v. Haitian Centers Council, 509 U.S. 155 (1993) (construing statutes and treaty provisions restrictively to affirm presidential power to interdict and seize fleeing aliens on high seas to prevent them from entering U.S. waters).

  2.  Jump to essay-2Act of June 25, 1798, 1 Stat. 570. The Act was part of the Alien and Sedition Laws and authorized the expulsion of any alien the President deemed dangerous.
  3.  Jump to essay-3Act of March 3, 1875, 18 Stat. 477.
  4.  Jump to essay-422 Stat. 214 (1882) (excluding persons with intellectual disabilities, persons with mental illness, convicts, and persons likely to become public charges); 23 Stat. 332 (1885), and 24 Stat. 414 (1887) (regulating importing cheap foreign labor); 26 Stat. 1084 (1891) (persons suffering from certain diseases, those convicted of crimes involving moral turpitude, paupers, and polygamists); 32 Stat. 1213 (1903) (epileptics, persons with mental illness, professional beggars, and anarchists); 34 Stat. 898 (1907) (persons with disabilities, children unaccompanied by parents, persons suffering with tuberculosis, and women coming to the United States for prostitution or other immoral purposes).
  5.  Jump to essay-5Act of May 6, 1882, 22 Stat. 58.
  6.  Jump to essay-6Act of December 17, 1943, 57 Stat. 600.
  7.  Jump to essay-7Act of May 26, 1924, 43 Stat. 153.
  8.  Jump to essay-8Act of October 3, 1965, Pub. L. No. 89-236, 79 Stat. 911.
  9.  Jump to essay-9Act of June 27, 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. §§ 1101 et seq. as amended.
  10.  Jump to essay-10338 U.S. 537 (1950). See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), in which the Court majority upheld the Government's power to exclude on the basis of information it would not disclose a permanent resident who had gone abroad for about nineteen months and was seeking to return on a new visa. But the Court will frequently read the applicable statutes and regulations strictly against the government for the benefit of persons sought to be excluded. Cf. Delgadillo v. Carmichael, 332 U.S. 388 (1947); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953); Rosenburg v. Fleuti, 374 U.S. 449 (1963).
  11.  Jump to essay-11Under the War Brides Act of 1945, 59 Stat. 659.
  12.  Jump to essay-12338 U.S. at 543.
  13.  Jump to essay-13E.g., Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966). Cf. Trump v. Hawaii, 585 U.S. ____, No. 17–965, slip op. at 25 (2018) (assuming without deciding that statutory claims are reviewable and declining to rule on whether doctrine of consular nonreviewability rendered claims nonjusticiable).
  14.  Jump to essay-14Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948); De Canas v. Bica, 424 U.S. 351, 358 n.6 (1976); Toll v. Moreno, 458 U.S. 1, 12–13 (1982). See also Hines v. Davidowitz, 312 U.S. 52, 66 (1941); Graham v. Richardson, 403 U.S. 365, 376–380 (1971).
  15.  Jump to essay-15E.g., Heim v. McCall, 239 U.S. 175 (1915); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927); Sugarman v. Dougall, 413 U.S. 634, 646–49 (1973); De Canas v. Bica, 424 U.S. 351 (1976); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). See also Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, No. 09-115, slip op. (2011).
  16.  Jump to essay-16Purporting to enforce this distinction, the Court voided a statute, which, in prohibiting the importation of any alien woman or girl for the purpose of prostitution, provided that whoever should keep for the purpose of prostitution any alien woman or girl within three years after she shall have entered the United States should be deemed guilty of a felony. Keller v. United States, 213 U.S. 138 (1909).
  17.  Jump to essay-1754 Stat. 670, 8 U.S.C. §§ 1301-1306.
  18.  Jump to essay-18See Hines v. Davidowitz, 312 U.S. 52, 69–70 (1941).
  19.  Jump to essay-19In the 1990s, Congress began giving the states a larger role in the enforcement of federal immigration law. During this period, Congress also broadened the states' authority to deny aliens state benefits. Still, in the 2000s, states increasingly asserted greater independent authority to deter the presence of unlawfully present aliens within their borders, both through curtailing benefits and assuming a more active role in direct immigration enforcement. Most of these efforts foundered under court challenge, but some did not, resulting, in at least one instance, in the imposition of more severe consequences under state law than under federal law for similar immigration violations. See Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, No. 09-115, slip op. (2011). Nevertheless, the Whiting Court found a textual basis in federal statute for the state sanctions imposed there. Absent text-based authority for separate state penalties for federal immigration violations, those state penalties likely will fail on preemption grounds. Arizona v. United States, 567 U.S. ___, No. 11-182, slip op. (2012) (invalidating state sanctions on unauthorized aliens seeking work in violation of federal law and striking state penalties for violations of federal alien registration requirements). It would further appear that states must ground their efforts to detect, arrest, and remove unlawfully present aliens in authority delegated by Congress. Id.
  20.  Jump to essay-20312 U.S. 52 (1941).
  21.  Jump to essay-21312 U.S. at 68. The Court did not squarely hold the state incapable of having such a law in the absence of federal law but appeared to lean in that direction. State sanctions for violating federal alien registration laws were overturned in Arizona v. United States, at least in part because the state penalties were greater than those under federal law for the same violation. But see De Canas v. Bica, 424 U.S. 351 (1976), in which the Court, ten years prior to enactment of federal employer sanctions, upheld a state law prohibiting an employer from hiring aliens not entitled to lawful residence in the United States. The Court wrote that states may enact legislation touching upon aliens coexistent with federal laws, under regular preemption standards, unless the nature of the regulated subject matter precludes the conclusion or unless Congress has unmistakably ordained the impermissibility of state law. For examples of state sanctions against unlawfully present aliens that have been struck on preemption grounds, see Arizona v. United States, 567 U.S. ___, No. 11-182, slip op. (2012).
  22.  Jump to essay-22Graham v. Richardson, 403 U.S. 365 (1971). See also Sugarman v. Dougall, 413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717 (1973); Cabell v. Chavez-Salido, 454 U.S. 432 (1982).
  23.  Jump to essay-238 U.S.C. §§ 1182(a)(8), 1182(a)(15), 1251(a)(8).
  24.  Jump to essay-24See 42 U.S.C. § 1981, applied in Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 n.7 (1948).
  25.  Jump to essay-25See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), where the Court noted that [w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.
  26.  Jump to essay-26Kimm v. Rosenberg, 363 U.S. 405 (1960).
  27.  Jump to essay-27Abel v. United States, 362 U.S. 217, 229 (1960).
  28.  Jump to essay-28Marcello v. Bonds, 349 U.S. 302 (1955).
  29.  Jump to essay-29Carlson v. Landon, 342 U.S. 524, 540 (1952).
  30.  Jump to essay-30Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). See discussion of aliens’ due process rights under the Fifth Amendment, Aliens: Entry and Deportation.
  31.  Jump to essay-318 U.S.C. § 1252(b)(2).
  32.  Jump to essay-328 U.S.C. § 1252(b)(1).
  33.  Jump to essay-338 U.S.C. § 1252(b)(3).
  34.  Jump to essay-34Carlson v. Landon, 342 U.S. 524 (1952). In Reno v. Flores, 507 U.S. 292 (1993), the Court upheld an INS regulation providing for the ongoing detention of juveniles apprehended on suspicion of being deportable, unless parents, close relatives, or legal guardians were available to accept release, as against a substantive due process attack.
  35.  Jump to essay-3554 Stat. 670. For existing statutory provisions as to deportation, see 8 U.S.C. §§ 1251 et seq.
  36.  Jump to essay-36Carlson v. Landon, 342 U.S. 524 (1952).
  37.  Jump to essay-378 U.S.C. § 1252(e).
  38.  Jump to essay-38United States v. Spector, 343 U.S. 169 (1952).
  39.  Jump to essay-39Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999).