Immigration and the US Constitution

User avatar
Forty Two
Posts: 11870
Joined: Tue Jun 16, 2015 2:01 pm
About me: I identify as sexually arousing to women.
Contact:

Immigration and the US Constitution

Post by Forty Two » Fri Feb 09, 2018 6:45 pm

Let's play a game.

Can anyone explain where, specifically in the US Constitution, the US federal government gets the power and authority to legislate or regulate on the issue of immigration (as opposed to citizenship)?

I submit that there is no such provision delegating such authority the federal government.

As such, since any power not delegated to the federal government is retained by the States and the people, shouldn't each individual US state be handling the entry and exit of foreign persons into and out of each State?

For the strict constructionists out there, isn't the entirety of US immigration law, save the laws regarding "naturalization," unconstitutional?
If you ever feel sad, remember that somewhere in the world there is a fat kid dropping his favorite ice cream cone.

I'm not Steve Bannon. I'm not trying to suck my own c**k. - Anthony Scaramucci.

User avatar
Strontium Dog
Posts: 1702
Joined: Tue Feb 23, 2010 3:28 am
About me: Sensitive little flower
Location: Liverpool, UK
Contact:

Re: Immigration and the US Constitution

Post by Strontium Dog » Fri Feb 09, 2018 8:13 pm

Insert witty signature here

User avatar
laklak
Posts: 14496
Joined: Tue Feb 23, 2010 1:07 pm
About me: My preferred pronoun is "Massah"
Location: on the beach, drinking a beer
Contact:

Re: Immigration and the US Constitution

Post by laklak » Fri Feb 09, 2018 8:30 pm

Article 1 Section 8 "To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;"

That covers naturalization, gets a bit hazy after that.

User avatar
Forty Two
Posts: 11870
Joined: Tue Jun 16, 2015 2:01 pm
About me: I identify as sexually arousing to women.
Contact:

Re: Immigration and the US Constitution

Post by Forty Two » Mon Feb 12, 2018 4:13 pm

Indeed, which shows that there is no such power set forth in the constitution, and the Supreme Court had to find that the US as a national government had the "inherent" power to control immigration, sort of a "natural law" of countries. That is, however, contrary to the express language of the US Constitution, which says that any power not delegated to the federal government belonged to the states and to the people.

So, the SCOTUS cases referenced in your link, which referred to inherent powers are (a) not strict constructions of the constitution and (b) completely ignore the 10th amendment which says "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."

I find it odd that "strict constructionist" conservatives in the US tend to be quite sure that the federal government has the power to restrict immigration to the US. Seems rather non-strict in terms of construction there....almost judicial activism!
If you ever feel sad, remember that somewhere in the world there is a fat kid dropping his favorite ice cream cone.

I'm not Steve Bannon. I'm not trying to suck my own c**k. - Anthony Scaramucci.

User avatar
Forty Two
Posts: 11870
Joined: Tue Jun 16, 2015 2:01 pm
About me: I identify as sexually arousing to women.
Contact:

Re: Immigration and the US Constitution

Post by Forty Two » Mon Feb 12, 2018 4:14 pm

laklak wrote:Article 1 Section 8 "To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;"

That covers naturalization, gets a bit hazy after that.
Indeed, which makes sense because the rules of Naturalization refers to who is a citizen of the United States, not who is lawfully present or admitted to Virginia or California or Florida.
If you ever feel sad, remember that somewhere in the world there is a fat kid dropping his favorite ice cream cone.

I'm not Steve Bannon. I'm not trying to suck my own c**k. - Anthony Scaramucci.

User avatar
Strontium Dog
Posts: 1702
Joined: Tue Feb 23, 2010 3:28 am
About me: Sensitive little flower
Location: Liverpool, UK
Contact:

Re: Immigration and the US Constitution

Post by Strontium Dog » Mon Feb 12, 2018 4:39 pm

I don't know what to say, 42. You're not a constitutional lawyer, yet you seem to think you have a better idea about the Constitution than they do.

Are there even any countries on the planet where the federal government does not have the power to limit immigration?
Insert witty signature here

User avatar
Forty Two
Posts: 11870
Joined: Tue Jun 16, 2015 2:01 pm
About me: I identify as sexually arousing to women.
Contact:

Re: Immigration and the US Constitution

Post by Forty Two » Mon Feb 12, 2018 5:11 pm

Strontium Dog wrote:I don't know what to say, 42. You're not a constitutional lawyer, yet you seem to think you have a better idea about the Constitution than they do.
Actually, the question in the OP is not whether the Supreme Court found that the federal government has the power - it does - the SCOTUS found that the power was "inherent" and therefore did not have to be spelled out in the Constitution. In other words, my statement that there is no express power written in the constitution that delegates that authority to the federal government. You can read the constitution here - http://constitutionus.com/ If you can find anywhere in there where it says that any part of the federal government has immigration power, then point it out.

It's not a question of "knowing better" - the SCOTUS never said otherwise. They "found" the power as part of the inherent power of a nation state. My truck was with the conservative strict constructionists, who are always so quick to point out that "The constitution doesn' say..." x y or z. They say there should be nothing read into it that isn't in the text. Well, here is an example of massive federal power that isn't even implied in the constitution. And, the writers knew enough to put in "Naturalization" as a power of the federal government - wouldn't they have also been able to add "immigration" or words to that effect?
Strontium Dog wrote: Are there even any countries on the planet where the federal government does not have the power to limit immigration?
I don't know. But, the strict constructionists would say that if the Constitution says that the federal government has the powers that are delegated to it by the Constitution, and that any other powers not so delegated belong to the States and to the People, then that would be that. It's quite clear on that point.

So, you posted a link, as if it answered the question posed in the game, which was to find a provision in the constitution where the federal government gets the authority. The answer is "there isn't one, and the federal government took the power by exercising it, and the SCOTUS upheld it by saying that it's an inherent power of the federal government." There never was an explanation for why the several states couldn't deal with immigration.

Also, there are lots of things our federal government can't do that other federal governments around the globe can do. Our federal government doesn't have general police powers, for example, where most, if not all, other countries have the national government with full, general police powers.
If you ever feel sad, remember that somewhere in the world there is a fat kid dropping his favorite ice cream cone.

I'm not Steve Bannon. I'm not trying to suck my own c**k. - Anthony Scaramucci.

User avatar
Sean Hayden
Microagressor
Posts: 8247
Joined: Wed Mar 03, 2010 3:55 pm
Contact:

Re: Immigration and the US Constitution

Post by Sean Hayden » Mon Feb 12, 2018 5:27 pm

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.
We should be able to get just about anything in there, eh?


User avatar
laklak
Posts: 14496
Joined: Tue Feb 23, 2010 1:07 pm
About me: My preferred pronoun is "Massah"
Location: on the beach, drinking a beer
Contact:

Re: Immigration and the US Constitution

Post by laklak » Mon Feb 12, 2018 5:35 pm

It's that fucking commerce clause. They use it for everything.

User avatar
Forty Two
Posts: 11870
Joined: Tue Jun 16, 2015 2:01 pm
About me: I identify as sexually arousing to women.
Contact:

Re: Immigration and the US Constitution

Post by Forty Two » Mon Feb 12, 2018 5:49 pm

Sean Hayden wrote:
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.
We should be able to get just about anything in there, eh?
The SCOTUS did not use the "necessary and proper" clause to get to the immigration power. That sentence doesn't mean that anything necessary and proper is in the power of the federal government. That sentence says that if a power listed there in Article I, Section 8, then the government has the power to make laws which are necessary and proper for carrying out those delegated tasks. The problem with that argument is that it's really impossible to find a listed delegated power that one can hang the necessary and proper clause on to bootstrap immigration. That's why the SCOTUS said "fuck it - it's an inherent power - feds have it, states don't - because it's a natural attribute of nationhood." or words to that effect.
If you ever feel sad, remember that somewhere in the world there is a fat kid dropping his favorite ice cream cone.

I'm not Steve Bannon. I'm not trying to suck my own c**k. - Anthony Scaramucci.

User avatar
Sean Hayden
Microagressor
Posts: 8247
Joined: Wed Mar 03, 2010 3:55 pm
Contact:

Re: Immigration and the US Constitution

Post by Sean Hayden » Mon Feb 12, 2018 5:51 pm

It's a bit of an eye opener to see how often the court sides with the feds. It makes you wonder about the whole checks 'n balances thing...

User avatar
Forty Two
Posts: 11870
Joined: Tue Jun 16, 2015 2:01 pm
About me: I identify as sexually arousing to women.
Contact:

Re: Immigration and the US Constitution

Post by Forty Two » Mon Feb 12, 2018 5:51 pm

laklak wrote:It's that fucking commerce clause. They use it for everything.
Tough to base the immigration of people on "commerce" lol. Might get some push-back on that one....

There is a clause in there on the "importation" of people, but they were referring to something else entirely there....
If you ever feel sad, remember that somewhere in the world there is a fat kid dropping his favorite ice cream cone.

I'm not Steve Bannon. I'm not trying to suck my own c**k. - Anthony Scaramucci.

User avatar
Tero
Just saying
Posts: 23619
Joined: Sun Jul 04, 2010 9:50 pm
About me: Something something birds
Location: USA
Contact:

Re: Immigration and the US Constitution

Post by Tero » Mon Feb 12, 2018 6:00 pm

1 freedom of speech and protesting shit
2 the thing about the creator and the inalienable rights
3 commerce clause

rinse, repeat
http://karireport.blogspot.com/ (:_funny_:)
http://esapolitics.blogspot.com/
Guns? Guns: https://farm5.staticflickr.com/4714/264 ... 9c76_z.jpg
This is how American politics goes
1 Republicans cut tax, let everything run down to barely working...8 years
2 Democrats fix public spending to normal...8 years
Rinse, repeat.

User avatar
Forty Two
Posts: 11870
Joined: Tue Jun 16, 2015 2:01 pm
About me: I identify as sexually arousing to women.
Contact:

Re: Immigration and the US Constitution

Post by Forty Two » Mon Feb 12, 2018 6:14 pm

Sean Hayden wrote:It's a bit of an eye opener to see how often the court sides with the feds. It makes you wonder about the whole checks 'n balances thing...
Indeed - it's been a near constant stream of power to the federal government for the last 80 to 100 years.

The interstate commerce clause has been stretched beyond limit.
If you ever feel sad, remember that somewhere in the world there is a fat kid dropping his favorite ice cream cone.

I'm not Steve Bannon. I'm not trying to suck my own c**k. - Anthony Scaramucci.

User avatar
Joe
Posts: 732
Joined: Tue Nov 28, 2017 1:10 am
Location: The Hovel under the Mountain
Contact:

Re: Immigration and the US Constitution

Post by Joe » Tue Feb 13, 2018 10:29 pm

Yeah, when I hear people say the Constitution calls for a small federal government, I think of the commerce clause, and the necessary and proper clause. Then I consider that the taxing power has no limit, and just can't see that being true. I remember exploring Federalist 34 with Seth, and Hamilton's riff on the "capacity to provide for future contingencies," and it seems the Constitution has some slack for government growth.

I wonder what Hamilton would think if he could see our federal government now. :zombie:
"Two things are infinite: the universe and human stupidity; and I'm not sure about the universe." - Albert Einstein
"as far as strong, i am hard as a rock and tough as a nail. no one will bring me down. no one. i am the debonator. the tnt. and jesus has my back door pal!" - D. C. Bockemehl
"If you vote for idiots, idiots will run the country." - Dr. Kori Schake

Post Reply

Who is online

Users browsing this forum: No registered users and 1 guest