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Immigration As Commerce: a New Look at the Federal Immigration Power and the Constitution

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Immigration As Commerce: a New Look at the Federal Immigration Power and the Constitution Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2018 Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution Jennifer Gordon Fordham University School of Law, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Law Commons Recommended Citation Jennifer Gordon, Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution, 93 Ind. L. J. 653 (2018) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/864 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Indiana Law Journal Volume 93 Issue 3 Article 3 Summer 2018 Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution Jennifer Gordon Fordham Law School, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Commercial Law Commons, and the Immigration Law Commons Recommended Citation Gordon, Jennifer (2018) "Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution," Indiana Law Journal: Vol. 93 : Iss. 3 , Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol93/iss3/3 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution JENNIFER GORDON INTRODUCTION...................................................................................................... 654 I. THE EVOLUTION AND IMPACT OF THE PLENARY POWER DOCTRINE .................. 659 II. THE COMMERCE CLAUSE AS A SOURCE OF THE IMMIGRATION POWER ............. 671 A. THE LOST SOURCE: THE FOREIGN COMMERCE CLAUSE ......................... 671 B. A NEW SOURCE: THE INTERSTATE COMMERCE CLAUSE ......................... 681 THE MODERN JURISPRUDENCE OF THE INTERSTATE COMMERCE CLAUSE ...................................................................... 681 III. THE ARGUMENT FOR ROOTING THE IMMIGRATION POWER IN THE COMMERCE CLAUSE TODAY ............................................................................ 687 A. IMMIGRATION AS AN ECONOMIC ACTIVITY ............................................. 687 B. THE FOREIGN COMMERCE CLAUSE ARGUMENT ...................................... 689 C. THE INTERSTATE COMMERCE CLAUSE ARGUMENT ................................ 693 1. IMMIGRATION IN RELATION TO MODERN INTERSTATE COMMERCE CLAUSE JURISPRUDENCE ........................................... 693 2. DISCUSSION OF IMMIGRATION AS INTERSTATE COMMERCE IN CONTEMPORARY CASE LAW ......................................................... 698 D. WHAT DO WE GET FROM CONCEIVING OF IMMIGRATION AS COMMERCE? ...................................................................................... 701 1. IMPACT OVERALL ........................................................................... 701 2. IMPACT ON CONSTITUTIONAL CHALLENGES TO DIFFERENT CLASSES OF IMMIGRATION POLICIES ............................................. 703 A. IMMIGRATION POLICIES RELATED TO EMPLOYMENT AND LABOR COMPETITION .................................................................... 703 B. IMMIGRATION POLICIES NOT RELATED TO EMPLOYMENT OR NATIONAL SECURITY ............................................................................. 704 C. IMMIGRATION POLICIES RELATED TO FOREIGN AFFAIRS AND NATIONAL SECURITY .............................................................................. 708 3. THE SAME END BY DIFFERENT MEANS? ......................................... 710 CONCLUSION ......................................................................................................... 711 Professor of Law, Fordham University School of Law. The author would like to thank the following individuals for very helpful comments on earlier drafts: Rose Cuison-Villazor, Nestor Davidson, Lee Gelernt, Abner Greene, Clare Huntington, Andrew Kent, Joe Landau, Thomas Lee, Stephen Legomsky, Robin Lenhardt, Catherine Powell, Jed Shugerman, and Benjamin Zipursky. Thanks also to my colleague Aaron Saiger for a conversation several years ago that prompted me to begin exploring this topic. My research for this Article benefitted from the early assistance of Krista Hahn Blumenberg, support from Emerson Argueta at a critical moment, and the tireless dedication of Alex Mintz throughout. 654 INDIANA LAW JOURNAL [Vol. 93:653 INTRODUCTION When the United States government sets immigration law and policy, how much attention must it pay to constitutional rights? This question has been much debated since President Donald Trump issued a series of immigration-related executive orders in his first week in office, including a bar on entry by citizens of a set of majority-Muslim countries, but it was controversial long before then. In important part, the answer depends on what the Constitution says about the scope and limits of the power of the federal government over immigration. Therein lies the tale. On this subject, the country’s founding documents say very little, and the Supreme Court’s interpretations have been inconsistent at best. For well over a century, federal courts have often relied on the theory that the immigration authority is rooted in the Constitution’s grant to the federal government of control over matters related to sovereignty and foreign affairs. This explanation forms the basis of the plenary power doctrine, first announced in 1889 and applied by the Supreme Court most recently in 2018. The doctrine grants Congress and the executive branch nearly unreviewable powers in the immigration arena. This Article offers an alternative. It asserts that immigration to the United States is and has long been principally economic in its purpose and impact and thus in many cases is properly considered a function of both the Foreign and Interstate Commerce Clauses. The constitutional source of a particular authority of a branch of the government does not wholly determine the degree of constitutional review that courts will exercise, but it is an important factor. An immigration power rooted in the Commerce Clause, the Article argues, would put a thumb on the scale in favor of ordinary judicial review for immigration statutes, rules, and policies challenged as violating constitutional rights. The argument that the immigration power grows from the Foreign Commerce Clause has a “Return of the Jedi” quality. For half of the nineteenth century, the Supreme Court did ground the immigration power in the Constitution’s explicit statement that the federal government has control over commerce with foreign nations.1 In the mid-1800s, when immigration first became seen as a national rather than state issue, courts treated the federal immigration power as an ordinary function of the Foreign Commerce Clause and relied on this theory to sustain the federal government’s right to tax ships that transported newcomers to the United States. While plenary in the sense that it granted control over immigration to the federal rather than the state governments, this power appeared to be subject to ordinary constitutional limitations. This era came to an end with the Court’s announcement of the plenary power doctrine in the Chinese Exclusion Case in 1889.2 There, the Supreme Court declared that Congress and the President have a near-absolute power to control immigration, with the corollary that courts should be highly deferential to the political branches 1. The Commerce Clause grants this power to Congress, not to the Executive Branch. Later in this Article, I argue that the Executive Branch shares in this power, both because of its role as the enforcer of congressional policies, and because of its independent authority. See infra notes 197–198 and accompanying text. 2. Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581 (1889). 2018] IMMIGRATION AS COMMERCE 655 when reviewing such decisions for constitutionality.3 For over 125 years, intermittently, but particularly at times of peak concern about national security, the Supreme Court has relied on this plenary power doctrine in limiting the extent of constitutional review of immigration policies that facially discriminated against individuals on the basis of their race, nationality, political beliefs, or gender. In the contemporary era, the Supreme Court’s reliance on the plenary power doctrine has fluctuated. In a number of cases, the Court has ignored the doctrine, leading many scholars to predict its demise.4 In others, it has relied on it, including in its recent decision on President Trump’s travel ban in Trump v. Hawaii.5 In no case has the Court overruled the doctrine, or even offered an explicit critique, and the justices have proposed no alternative theory to take its place. Plenary power arguments make consistent appearances in contemporary briefs, including those filed by the Trump administration,6 and in lower court decisions as well.7 In 2018, the Supreme Court decided three cases that raised issues about the relationship
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