The US Constitution Delegates No Power to Congress Over Immigration or Asylum Matters

Federalist Blog ^ | June 4, 2006 | P.A. Madison

[AZRepublican]

Pima County Attorney Barbara LaWall on behalf of herself and several other county attorneys and sheriffs, recently said a Arizona proposed immigration provision is an unconstitutional intrusion by the state into immigration policies, which are solely the purview of the federal government. That struck me kind of odd since to be a purview of the federal government the power must first be delegated or, incidental to a delegated power, upon Congress by the US Constitution. There is a significant reasons why Congress has no delegated power leading to jurisdiction under the US Constitution in matters of immigration or Asylum.

To better understand why this is so we need to go back to the founding of the United States of America and consider Article II of the Articles of Confederation that read:

Each state retains its sovereignty; freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

Prior to the adoption of the current Constitution, which was intended to correct for deficiencies found in the Confederation (hint: "to form a more perfect union"), States decided for themselves who could reside and later become citizens within their limits. This was simply a function of sovereignty each State enjoyed and had no intention of surrendering to the national government.

During the Constitutional Convention of June 16, 1788, George Mason asked if the new Constitution would secure and guarantee the rights the States then currently enjoyed. Said Mason:

[calex59]

It's about time someone pointed this out! The feds think they control everything because the liberals have worked hard to undermine states rights.

[seastay]

Whose jurisdiction is immigration enforcement under; federal , state or local? Lets turn them all over to see if there is any jurisdiction at all !

[old republic]

Yeah, its true, the Constitution says nothing directly about immigration. Technically it doesn't even say that the federal government can naturalize anyone. The Constitution merely gives the power to create uniform rules for the process of naturalization and who is elligible for naturalization. Here is the delegated power from Article I Sec.8 which gives Congress the power:

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

The only other power that talks about migration is referring to the importation of slaves. It is in section 9 of Article I and says:

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, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

[AZRepublican]

Slavery comes under Congress through the commerce clause because slaves were bought and sold from other countries. This is how the supreme court struck down New York laws preventing the Irish from landing if I recall correctly.