Conservatives, libertarians, and constitutionalists demand that legislators be able to cite, chapter and verse, the clause of the US Constitution that authorizes any federal legislation. It may come as a surprise to even the most versed Constitutional advocate, then, that the power to restrict the movement of non-combatant foreigners across the US border is not one of the enumerated powers of Congress.
Many say that federal power over immigration is implied by the fact that Congress has the power “to establish an uniform Rule of Naturalization,” which, strictly defined, refers to the process by which a non-citizen resident can claim US citizenship and acquire the full rights of a US citizen (such as the right to vote). It does not refer, however, to the process by which a foreigner may become a resident by immigrating. In fact, it has never been a requirement to seek citizenship in order to reside within our borders.
It could be argued that the power granted to the federal government to repel invasions implies control over the borders. However, unless we are willing to call all migrants “invaders,” this doesn’t justify the federal restriction and regulation of movement across the border. I’ve heard people say that Mexican immigrants are “invaders” because they are violating the law by coming here. But that argument—that federal immigration law is only constitutional if immigrants are invaders, and immigrants are invaders only because they violated that law—is circular logic.
If the federal government has no power over immigration, who does? The Supreme Court, for nearly a hundred years, affirmed that states and states alone have the power to regulate and restrict movement across their borders. It was during this period of time that most of the early Latter-day Saint converts traveled to America. They didn’t have to ask permission from the federal government to step foot in our country. And they shouldn’t have to appeal to the federal government for permission today either; it should still be left up to the states. If a state wishes, to its detriment, to forbid foreigners entry into their territory, that is within its power. However, such power should be used as sparingly as possible.
Echoing the United States’ 1868 treaty with China, I believe that there is “an inherent and inalienable right of man to change his home and allegiance.” Unfortunately, the federal government violated this sentiment with its very first immigration law forbidding anyone of Chinese descent from crossing into our borders. Known as the Chinese Exclusion Act, this statute was enacted as a form of central planning to protect local Californian labor from foreign competition. Thus began the sad succession of federal immigration laws.