Sorry, Judge Napolitano: Immigration Isn’t “Foreign Policy”

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By Thomas L. Knapp

By the time you read this, the US Court of Appeals for the Ninth Circuit may have handed down a ruling for or against president Donald Trump’s executive order banning travel and immigration from seven countries. Two states (Washington and Minnesota) are suing to kill that order.

Andrew Napolitano — a prominent constitutionalist and libertarian commentator, not to mention a former New Jersey Superior Court judge — writes in Reason that the states don’t have legitimate standing to sue. Why? Because the Constitution provides for quite a bit of presidential latitude on foreign policy.

I’ll explain why Judge Napolitano is wrong on the details momentarily, but first let’s get one thing out of the way: Immigration is not a foreign policy matter. Foreign policy relates to matters outside the United States and to relations between US government and other governments around the world. Immigration relates to individuals wishing to enter and possibly reside in the United States. It is therefore a matter of domestic, not foreign, policy.

It’s also a matter constitutionally reserved to the states, which is where Judge Napolitano really steps in it. He hangs his argument for the order and against the states’ legal standing on the fact that “[a] 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security.”

But that statute is plainly unconstitutional, for the same reason that the states have standing. Why? Because per Article I, Section 9 of the Constitution, “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 …”

Article V of the Constitution forbids amending that provision prior to 1808, and no amendment to it has been proposed or ratified since that time. Congress scrupulously observed that restriction for nearly a century. As with many restrictions on federal power, it eventually got ignored. But it’s still “the supreme law of the land.”

The Constitution doesn’t enumerate a federal power to regulate immigration. In fact it clearly and unambiguously reserves that power to the states. That makes the statute Judge Napolitano references unconstitutional, and the executive order hinging on it void. Obviously states have standing to sue when the federal government usurps a power the Constitution reserves to them.

Judge Andrew Napolitano


Thomas Knapp -- Photo Credit Avens O'Brien

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.  He is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org).

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5 Responses to Sorry, Judge Napolitano: Immigration Isn’t “Foreign Policy”

  1. Thomas L. Knapp February 14, 2017 at 2:27 am

    Citizen Reporter,

    Naturalization is the process of becoming a US citizen.

    Immigration is moving from one place to another.

    They are tenuously related, but far from the same thing.

    The ONLY mention of immigration in the US Constitution reserves it to the states, a reservation which Congress respected for nearly 100 years until well after an activist Supreme Court fantasized up a federal power found nowhere in the Constitution.

    That’s just a simple fact. You don’t have to like it. It’s true whether you like it or not.

    Reply
    • Citizen Reporter February 14, 2017 at 2:14 pm

      Nice try, but being a refugee and being vetted are part of that process. Statutes lay this out. Trump’s executive order was well within legality in that it provided direction for implementing constitutional law.

      Reply
  2. Thomas L. Knapp February 12, 2017 at 4:24 pm

    Citizen Reporter,

    I guess ONE of us needs to read the Constitution.

    The only mention of immigration in that document specifically and unambiguously reserves power to regulate immigration to the states, mandating that that couldn’t even be amended until after 1808 — since which it never has been.

    Reply
    • Citizen Reporter February 12, 2017 at 5:24 pm

      No, sorry, Mr. Knapp. You need to re-acquaint yourself with Article I, Section 8, Clause 4. “to establish a Uniform rule of Naturalization” is an enumerated power of the federal government. It is well established and quite clear in the Constitution, statutory law and court rulings that the federal government controls immigration and that Congress has delegated power for the enforcement of those laws to the President.

      A digest of immigration laws: https://www.uscis.gov/laws

      Reply
  3. Citizen Reporter February 10, 2017 at 5:44 pm

    You need to read the Constitution, Mr. Knapp. Immigration is SPECIFICALLY a power of the federal govt. And no wonder, since policy affects ALL states. Federal statures, most since 1808, reinforce that and specify rules, some of which grant the President extensive powers and discretion. Trump’s actions are definitely legal, even if Liberal judges – and some left Libertarians- disagree.

    Reply

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