The Source of the Federal Government’s Power to Regulate Immigration and Asylum Law

The United States has a controversial history with immigration. For one, the United States is mythologized as a nation of immigrants—with the exception of Native Americans. However, since the country’s founding, Congress has passed, and the Supreme Court has upheld, statutes excluding certain groups of people from immigrating to the United States.[1] The power to enact and enforce federal laws is firmly vested in the federal government through the United States Constitution.[2] The Legislative branch enacts the laws and the Executive branch enforces the laws. However, the source of the federal government’s power to specifically enact and enforce immigration laws is less clear. Case law dating back to the 19th century illustrates that immigration has consistently been a matter of national concern. In Galvan v. Press, the Supreme Court stated: “the formulation of [immigration] policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.”[3] But where exactly does this “firmly embedded” power come from? Similar to other Legislative and Executive powers, the power to enact and enforce immigration laws is derived from a multitude of sources. This blog will uncover the source of the federal government’s sweeping power over immigration by discussing case law and structural arguments that firmly vest powers over immigration in the federal government.

Case Law and Structural Arguments Supporting Federal Immigration Power

Article 1 of the United States Constitution grants Congress the power to establish a uniform rule of naturalization.[4] Naturalization is defined in the United States Code as “the conferring of nationality of a state upon a person after birth, by any means whatsoever.”[5] The naturalization process is the legal process by which a foreign citizen is granted American citizenship. Although citizenship can be the end goal for immigrants, the naturalization clause alone does not grant the federal government an enumerated power over immigration.[6] Justice Nelson’s dissenting opinion in the Passenger Cases[7] clearly states: “No direct authority over aliens has been delegated to Congress by the Constitution.”[8] Justice Nelson goes on to state that the Naturalization Clause grants Congress the power only to “extend to alien friends the common privileges of citizens.”[9] Beyond that power, there is no enumerated power of Congress to “deal with aliens as a class.”[10] Therefore, the Supreme Court has looked elsewhere in the Constitution to “firmly grant” the power over immigration to the Executive and Legislative branches.

In Fong Yue Ting v. The United States, the Court held that the federal government’s power to regulate and enforce immigration was derived from its foreign policy power, which is located in Article I and Article II of the U.S. Constitution.[11] Article 1 of the Constitution establishes the enumerated powers of Congress.[12] Specifically, “Congress’s foreign policy powers include: the power to ratify presidential treaties, the power to declare war, the power to regulate commerce with foreign nations, the power to punish felonies on the high seas, and the power to provide advice and consent for the president’s foreign ambassador nominations.[13] Executive foreign policy powers include: the power to make treaties, the power to command the military, and the power to receive foreign ambassadors. Although power over immigration is noticeably lacking from these provisions, the Court has interpreted immigration to be an implied power based on the branches’ respective foreign policy powers.[14] This interpretation is evidenced in Ting, where the Court stated, “The power to exclude or to expel [foreigners,] being a power affecting international relations, is vested in the political departments of government, and is to be regulated by . . . act of congress, and to be executed by the executive. . . .”[15] Ting was arrested for violating the Chinese Exclusion Act because he did not having a certificate of residence to remain in the country.[16] The Act required Ting to have a certificate of residence to remain in the United States.[17] Ting contested his arrest by filing suit against the United States.[18] The Court upheld the Act, by virtue of the foreign commerce clause, which allowed the United States to regulate and prevent Chinese people from entering the United States.[19] The argument that the federal government had exclusive power to control immigration based on its foreign relations power and national sovereignty gained traction as the Court accepted more immigration cases.[20]

Chae Chan Ping v. United States was the first case to hold that the federal power to exclude non-citizens is an incident of national sovereignty.[21] The Court in Ping described Congress’s immigration power as uncontroversial, stating, “jurisdiction over its own territory . . . is an incident of every independent nation.”[22] Both Ting and Galvan echoed the holding in Ping. The Court in Ting held that the United States’ right to exclude or expel a class of foreigners was an inherent and inalienable right of every sovereign nation.[23] Additionally, the Court found this right was essential to maintaining the safety, independence, and welfare of the nation.[24] Similarly, in Galvan, the Court described Congress’s broad power over immigration as “touching . . . basic aspects of national sovereignty. . . and national security.”[25]

The facts of Ping are similar to Ting. Ping was a Chinese laborer who was denied readmission to the United States after Congress passed the Chinese Exclusion Act in 1882.[26] Prior to the Act’s passage, the United States and China entered into a treaty establishing that Chinese people visiting the U.S. would have the same travel and residence privileges, immunities and exemptions that American citizens enjoyed.[27] Ping was a laborer of Chinese descent living and working in San Francisco, California.[28] In 1887, Ping traveled to China but he had a certificate that entitled him readmission to the United States.[29] The Act took effect in 1882. When Ping returned to San Francisco and produced his certificate of reentry, he was denied and told that the Act had annulled his certificate.[30] Ping sued for admission to the United States and challenged the validity of the Chinese Exclusion Act.[31] The Court upheld the Act and reasoned that Congress had broad powers to determine immigration and exclude foreigners as an incident of sovereignty.[32] In Galvan, the petitioner contested an order of deportation based on his short membership in the Spanish Speaking Club which was an alleged Communist Party Unit.[33] The Court held that the federal government’s power to deport Galvan for being a member of the Communist Party was essential to maintaining foreign relations and national sovereignty.[34]

In addition to historical case law, David Weissbrodt, Laura Danielson, and Howard S. Myers III theorize that a structural analysis weighs in favor of finding that the federal government has exclusive power over immigration.[35] The first structural argument relates to self-preservation.[36] The self-preservation theory states that government control and border control are two of the most important aspects of any sovereign nation[37] and that a nation cannot be sovereign without the power to secure its borders through regulating immigration.[38] Therefore, under this theory, the power to regulate immigration is an inherent part of creating a sovereign nation.[39] The second argument relates to national self-definition.[40] This theory states that an essential part of any sovereign nation is the power to formulate its national identity.[41] Choosing the people that make up a country is an essential part of self-definition.[42] Thus, a broad and supreme federal power over immigration is necessary for the nation’s self-identity.[43]

More Recent Litigation

The aforementioned cases relate to immigration broadly. However, the Supreme Court issued a decision in 1987 that established Congress’ power over asylum law more specifically in INS v. Cardoza-Fonseca.[44] Cardoza-Fonseca was a Nicaraguan citizen who was being deported by the Immigration and Naturalization Services (“INS”) for remaining in the United States after she had refused to voluntarily depart the country.[45] Her refusal to return to Nicaragua was based on a fear of being persecuted for her political views.[46] Cardoza-Fonseca requested withholding of deportation pursuant to § 243(h) and § 208(a) of the Immigration and Nationality Act (“INA”).[47] Section § 243(h) provides that the Attorney General is required to withhold deportation of a refugee who demonstrates that their life or freedom would be threatened based on their specific beliefs.[48] Under § 243(h), a refugee must demonstrate that it is more likely than not that the refugee would be subject to persecution in the country to which she was returned.[49] Comparably, under § 208(a), the Attorney General has discretion to grant asylum to a refugee if the refugee is unable or unwilling to return to her home country because of persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.[50] At issue in this case was the breadth of relief entitled to refugees under each section of the statute. Asylum relief under § 208(a) was offered to a broader class of refugees than the narrower class of refugees protected under § 243(h).[51] In Cardoza-Fonseca’s case, the Immigration Judge applied the same standard, the clear probability of persecution standard, in evaluating both her § 243(h) and her § 208(a) claims.

The Court held that the Immigration Judge erred in applying the same standard to both of her claims.[52] A clear probability of persecution and a well-founded fear of persecution are different standards and it was the well-founded fear of persecution which was the correct standard for granting asylum under 208(a).[53] Cardoza-Fonseca’s case was remanded so the Board of Immigration Appeals could evaluate her claim under the correct legal standard.[54] In support of this holding, the Court reasoned: “Courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.”[55] The Court’s language made it clear Congress had the power to enact asylum laws and delegate the administration of those laws. Moreover, the decision also recognized the Court’s power to interpret the INA and ultimately determine that the two standards were different for purposes of granting asylum.[56]


The collection of case law attempting to decipher the root of federal power over immigration illustrates the importance of understanding the genesis of this power. The Constitution is not explicitly clear on which branch of government has power over immigration, which has resulted in the judiciary interpreting the Constitution to answer this question. It is now well settled that the federal government has exclusive power to regulate immigration. This power is rooted in national sovereignty and federalism. Under a federalist system, the federal government enacts laws that apply to all jurisdictions of the United States.[57] One uniform law on immigration creates uniformity for all fifty states. From uniformity comes national identity, definition, and preservation.

The strongest foundation for the federal government’s exclusive power over immigration is rooted in national sovereignty. In a nation as large and diverse as the United States, it is imperative that there is one supreme law of the land. Although the nation is a hodgepodge of different cultures and languages, all can identify as Americans. A truly sovereign nation must be able to define its borders and the people who make up the nation. Without the delegation of immigration law to the federal government, we would cease to be the United States of America. Each state could enact its own immigration laws, resulting in unequal application of the law, especially among groups of people who are most vulnerable to maltreatment and indignities. Unequal application of the law runs afoul of the Constitution. The Supreme Court’s holdings illustrate the Court’s attempt to preserve this nation’s identity and strength as “one nation” by upholding the federal government’s exclusive power of immigration based on national sovereignty.

  1. David Weissbrodt ET AL., Immigration Law and Procedure 59 (7th ed. 2017).
  2. U.S. Const. art. I & U.S. Const. art. II.
  3. Galvan v. Press, 74 S. Ct. 737, 743 (1954).
  4. U.S. Const. art. I, § 8, cl. 4.
  5. 8 USC 1101(a)(23).
  6. Weissbrodt ET AL., supra note 1, at 62.
  7. Smith v. Turner, 48 U.S. 283, 284 (1849). In Smith, New York and Massachusetts had laws that imposed taxes upon foreign passengers arriving in their state ports. Although there was no majority opinion, a 5-4 decision by the Court held that a state statute laying a tax upon aliens arriving in the ports of the state was unconstitutional.
  8. Id. at 510.
  9. Id.
  10. Id.
  11. Fong Yue Ting v. United States, 13 S.C. 1016, 1022 (1893).
  12. U.S. Const. art. I.
  13. U.S. Const. art. II § 2.
  14. Fong Yue Ting, 13 S.C. at 1022.
  15. Id.
  16. Id.
  17. Id.
  18. Id.
  19. Id. at 1016.
  20. Weissbrodt ET AL., supra note 1, at 63.
  21. Chae Chan Ping v. United States, 9 S.C. 623 (1889). And David Weissbrodt ET AL., Immigration Law and Procedure 63 (7th ed. 2017).
  22. Chae Chan Ping, 9 S.C. at 629.
  23. Fong Yue Ting, 13 S.C. at 1021.
  24. Id.
  25. Galvan, 74 S. Ct. at 742.
  26. Chae Chan Ping, 9 S.C. 623 at 624.
  27. Id. at 625.
  28. Id. at 623.
  29. Id.
  30. Id.
  31. Id. at 624.
  32. Id. at 631.
  33. Galvan, 74 S. Ct. at 739.
  34. Id. at 742.
  35. Weissbrodt ET AL., supra note 1, at 64.
  36. Id.
  37. Id.
  38. Id.
  39. Id.
  40. Id.
  41. Id.
  42. Id. at 65.
  43. Id.
  44. INS v. Cardoza-Fonseca, 107 S.Ct. 1207 (1987).
  45. Id. at 1209.
  46. Id.
  47. Id.
  48. Id.
  49. Id. Citing INS v. Stevic, 467 U.S. 407 (1984).
  50. Id.
  51. Id.
  52. Id.
  53. Id.
  54. Id. at 1208.
  55. Id. at 1221.
  56. David Weissbrodt ET AL., Immigration Law and Procedure 98 (7th ed. 2017).
  57. Cornell Law School, (last visited Nov. 10, 2020).

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