Notice & Comment

Disrupting Immigration Sovereignty, by Jill E. Family

familyj_6999It is time to rethink legal and popular notions of immigration sovereignty. In the 19th Century, the Supreme Court depicted immigration as a threat to national sovereignty. It did so to support its conclusion that the political branches (Congress and the President) had extra-constitutional power over certain aspects of immigration law. In explaining why the federal government had that unusual, plenary power over immigration law, the Supreme Court explained that such a power is inherent in the sovereignty of the country. If it did not have unlimited power over immigration, then the United States would be effectively subject to other national powers, who might aggressively send its people to the United States. Over the years, this narrative of immigration as inherent national security threat has persisted both in the law and in popular discourse.

This narrative is back to front and center because of President Trump’s January 27, 2017 ban on refugees and other travelers from seven predominately Muslim nations. President Trump promotes the narrative of immigration as an inherent threat to sovereignty, continuing a major theme of his campaign. President Trump boosts that narrative by deceptively depicting the government as powerless to maintain security while administering the immigration laws. His administration insists that giving him unquestioned authority is the only solution.

This plenary power narrative stifles our ability to think rationally about immigration law policy and to build consensus. The narrative should not be that of a zero-sum game. The choice is not between absolute, unchecked authority and no government power over immigration. There is middle ground. The plenary power doctrine has been weakened over the last 128 years, and many immigrants are subject to constitutional protection today. In terms of facts, immigration is not inherently a threat. Immigration has done wonderful things for our country and immigrants have contributed in a variety of important ways.

We need a new immigration narrative that more accurately reflects law and fact. This narrative acknowledges that there is space for both government interests and individual rights in immigration law. To make progress, we need to disrupt the mindset that does not allow immigration and security to comfortably occupy the same space. It is possible to be secure and to welcome immigrants while promoting individual rights. This new narrative promotes the idea that the sovereignty of the United States incorporates our exceptional dedication to individual rights. It recognizes that allowing for powers not supervised by the Constitution is its own threat to our sovereignty.

The new narrative recognizes that both individual rights and government interests are important in immigration law. The government has an important role to play in fashioning immigration law policy for the country. Security is an important consideration. But so is protecting individual rights. Preserving the United States includes uplifting its most fundamental values, including the principle that absolute government power is not desirable. Allowing for individual rights to be considered in immigration law does not weaken sovereignty; it strengthens our sovereignty by helping to define who we are. It also sends even unsuccessful immigrants home with an experience to relay that reflects American values.

It is time to break free from the 19th Century mindset of the plenary power doctrine and to embrace a more modern and representative conception of immigration sovereignty. All the new narrative calls for is an assumption that the Constitution applies. The old narrative promotes unchecked government power out of the reach of the Constitution and is an uncomfortable fit in a country that values individual rights.


Jill E. Family is the Commonwealth Professor of Law and Government and Director of the Law and Government Institute at Widener University Commonwealth Law School.

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